[1986] OLRB Rep. March 319
2310-85-R Therese Laframboise and Yolande Pichette, Applicants, v. Service Employees Union, Local 219, Respondent, v. Domus Building Cleaning Co. Ltd., Intervener
BEFORE: Robert J. Hernwn, Vice-Chairman, and Board Members W. A. Correll and C. A. Ballentine.
APPEARANCES: Stephen Acker and Deborah Carlson for the applicant; William Love and Gerry Goyer for the respondent; George W. Oakes and Rheal Parent for the intervener.
DECISION OF ROBERT J. HERMAN, VICE-CHAIRMAN, AND BOARD MEMBER C.A. BALLENTINE; March 14, 1986
[1]. This is an application brought pursuant to section 57 of the Labour Relations Act for a declaration terminating the bargaining rights of the respondent trade union with respect to a unit of full-time employees employed by the intervener employer at the University of Ottawa, Ottawa, Ontario.
[2]. The parties are agreed and the Board finds that this application satisfies the timeliness requirements of sub-section (2) of section 57. Subsection (3) of that section reads as follows:
Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
[3]. Based on the lists of employees filed by the intervener employer, all parties are agreed that there were 65 employees in the bargaining unit as of the application date. The applicants filed with this application a document ("the petition") purporting to evidence the desire of 49 employees in the bargaining unit that they no longer wish to be represented by the respondent. This document was filed with the Board as of December 27, 1985, the terminal date fixed for this application and the date which the Board determines under section 103(2)(j) of the Labour Relations Act to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent under section 57(3) of the Act. The petitions filed by the applicants contain a sufficient number of signatures to cause the Board to order a representation vote if those people are found to have voluntarily signed. In that connection 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.
[4]. The intervener employer, Domus Building Cleaning Co. Ltd., has obtained through tender, contracts to provide overnight or daytime cleaning services for several Ottawa University buildings. The employees of Domus who perform those cleaning services, at the several buildings involved, are all employees within the instant bargaining unit and are represented by the respondent union.
[5]. The applicant Therese Laframboise is a cleaner working from 10:30 p.m. to 7 a.m. nightly in Fauteux Hall, the home of the Faculty of Law at the University of Ottawa. When Mrs. Laframboise reports for work each evening, she reports to Salange Larocque, who provides Mrs. Laframboise with the necessary keys to obtain access to the offices which she is to clean that evening. Upon receiving the keys, the applicant proceeds to the floor in question and working largely on her own proceeds to clean that floor. Except during breaks on her shift, Mrs. Laframboise does not generally see Mrs. Larocque until she returns the keys at the end of her shift. Mrs. Larocque is herself a member of the bargaining unit, described as "cleaner" and her functions consist largely of controlling access to the keys to the building and inspecting the floors, where necessary, to ensure that a proper job has been done. Mrs. Larocque is not involved in any discipline, hiring, firing, evaluations or any other indicia of the exercise of managerial functions. Mrs. Laframboise testified that the idea for the petition was her own and Mrs. Larocque in no way influenced her or participated in that decision.
[6]. Within one month after the certification of the union, in April, 1984, a group of employees commenced the circulation of a petition. Legal advice was obtained and the employees were advised that they were not entitled at that time to apply to terminate the bargaining rights of the union and would have to wait until the "open period" set out in section 57 of the Labour Relations Act occurred. Neither applicant was involved in any way in the origination or circulation of that earlier petition.
[7]. Mrs. Laframboise also testified that at a union meeting held sometime in April of 1985, the employees in attendance had voted to reject a 10 an hour increase being offered by the employer. The applicant explained this rejection by the employees on two grounds. First, the applicant felt that any increase in wages to the employees would only result in the union increasing their monthly dues in a corresponding amount, with no net benefit to the employees. Second, there were pervasive rumours about the financial difficulties of the employer and a feeling that any increase in wages would result in lost jobs. The applicant was unable to identify the source of those rumours.
[8]. Mrs. Laframboise further testified that it was her idea to initiate the petition in the instant application, and she obtained legal assistance for this purpose. She then typed the heading on both pages of the petition and arranged for the other applicant, Yolande Pichette, to assist her with the circulation of the petition and the obtaining of the signatures thereon. Mrs. Laframboise obtained the 11 signatures of employees in the bargaining unit on her petition outside the buildings where the various employees worked, one evening prior to commencing her work shift and prior to the other employees commencing work. There was no evidence tendered with respect to two of the signatures on the petition supposedly gathered by Mrs. Laframboise and the Board accordingly gives them no weight.
[9]. The remaining 36 signatures were all obtained by the other applicant, Yolande Pichette. Mrs. Pichette performs the same function, that of night cleaning service, as Mrs. Laframboise but does so for a different building at the university. Mrs. Pichette has worked for approximately 12 years for the intervener employer, on the similar 10:30 p.m. to 7 a. m. shift worked by the other applicant.
[10]. As in the building where Mrs. Laframboise works, Mrs. Pichette works with someone responsible for handing out the keys at the beginning of the shift, inspecting where necessary the job done by the cleaners and recovering the keys at the end of the shift. Mrs. Pichette also testified that the overall supervisor for all the employees of the bargaining unit, regardless of which building they work in, is Mr. Paul Fortin. It is his responsibility to ensure that all the buildings are properly serviced and he makes the rounds of all buildings to ensure this where necessary. Mrs. Pichette and Mr. Fortin have been good friends for the 12 years since she has been working for this employer. They regularly see each other outside working hours and virtually all the employees are aware of their friendship. When asked in cross-examination whether she would describe herself as Mr. Fortin's "girlfriend", she did not respond. Mrs. Pichette did state in cross-examination that most of the employees believe that she and Mr. Fortin talk about employment matters, including union affairs, but in fact this is not true as the two never discuss employment matters. She further testified that she had advised employees that employment matters were never so discussed between her and Mr. Fortin.
[11]. Mrs. Pichette obtained from Mrs. Laframboise, the other applicant, her copy of the blank petition with the heading already typed in. She decided to begin obtaining signatures on the morning in question at 6:00 a.m., approximately one hour before her shift would ordinarily end. In order to do so she needed permission to leave prior to the official end of her shift and had to obtain this permission from Mr. Fortin, her supervisor. Mrs. Pichette spoke to Mr. Fortin and asked for permission to leave an hour early, stating she needed to do so for personal reasons. It is not clear from the evidence whether she requested leave the morning in question or the prior day, however it is clear that Mr. Fortin granted her permission to leave early. The applicant indicated that in her twelve prior years at Domus she had never previously requested time off for personal reasons, other than for reasons of illness.
[12]. From approximately 6:00 a.m. to 6:45 a.m., Mrs. Pichette went to two different buildings where employees were working, and in the lobbies of those buildings obtained the signatures of 24 of the 36 names on her petition. Mrs. Pichette then went home for the day and that evening before she began her own work shift obtained the signatures of four more employees. During her work shift that evening the remaining signatures on her petition were obtained (with the exception noted in paragraph 8 above with respect to two of the signatures on her petition).
[13]. She further testified that most of the employees were aware of the rumours about the potential loss of building contracts and therefore loss of jobs, should there be any increase in wages. In cross-examination she admitted that the employees who signed could have been intimidated because of her relationship with Mr. Fortin, but felt that they would have signed in any event.
[14]. The final witness was Mr. Rheal Parent, the Operations Manager of the intervener employer and Paul Fortin' s supervisor. In addition to explaining how the employer operated and how the tender system at the university worked, Mr. Parent more fully explained the role and functions of the employees' supervisor, Mr. Fortin. He indicated that Mr. Fortin can be and has been involved in hiring people, and to a limited extent plays a role in any lay-offs. As lay-offs are on the basis of seniority, Mr. Fortin would not have any discretion unless individual employees wished to be on summer lay-off (presumably to be with their families) and therefore wanted to be laid off earlier then their seniority demanded. Mrs. Laframboise had testified that in her opinion Mr. Fortin did do the hiring for Domus. Mr. Parent also indicated that one or two times he had asked Mr. Fortin to attend union meetings to see what was going on.
[15]. The respondent concedes that any involvement by Mrs. Larocque or her counterparts (i.e. those who hand out the keys at the beginning of the shifts etc.), in the origination or circulation of the petition would not interfere with the expression of the true wishes of the employees signing such petition. Nevertheless, argues the respondent, the Board ought to refuse to act on the petition and direct a representation vote, on the grounds that the vast majority of the signatures were obtained by Mrs. Pichette, a close friend of management, and the employees signing the petition would have perceived either that management was involved in the circulation of the petition or, more likely, that their decision whether or not to sign the petition would be known or communicated to management.
[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 Lobatts Ontario Breweries, [1985] OLRB Rep. March 433; International Beverage Dispensers and Bartenders Union, Local 280, [1981] 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, [19801 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 a 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 full 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.
[17]. In the instant proceeding, the number of signatures obtained by Mrs. Laframboise would not alone be sufficient for the Board, were we satisfied with the voluntariness of those signatures, to direct that a representation vote be held. The majority of signatures was obtained by Mrs. Pichette, both a "good friend" of the supervisor of all the employees, Paul Fortin, and well-known by employees to be such a friend. Mrs. Pichette conceded that most employees felt that she and Mr. Fortin discussed employment and union matters, although indicating that such was not in fact true and that she had told employees this. Nevertheless, the evidence suggests that most employees felt that they discussed such matters, and Mrs. Pichette further conceded that the employees "could have been intimidated" by this perception into signing the petition.
[18]. Other factors cause the Board concern in addition to the awareness of employees signing the petition as to the relationship between Mrs. Pichette and Mr. Fortin. Most of the signatures obtained by Mrs. Pichette were obtained at or around the place where the employees worked, in the lobbies of the buildings that they cleaned. Most of these signatures were also obtained when Mrs. Pichette would ordinarily be working (from 6:00 to 7:00 a. in.) and she needed to obtain Mr. Fortin's permission in order to leave work early. Mr. Fortin is the immediate supervisor of all employees and it is a reasonable inference that any employee would need his permission to leave early, and would therefore know that he had given such permission to Mrs. Pichette. We further infer that the employees would not have perceived Mrs. Pichette as independent and free from management influence, or at least that their expression of their wishes would not remain confidential. Mrs. Pichette's evidence that she and Mr. Fortin did not in fact discuss employment or union matters may well be true. However, the concern of the Board's inquiry is whether the employees who signed the petition, at the time they signed the petition, might have perceived management involvement or awareness of the petition and might have felt that their individual wishes would have been communicated to management. Again, Mrs. Pichette herself testified both that employees signing would have thought that she and Mr. Fortin discussed union matters, and that they might well have thereby been intimidated into signing.
[19]. Under these circumstances, the Board is not satisfied that the petition represents the voluntary wishes of the employees in the bargaining unit and accordingly the Board cannot give it any weight. The Board would note however that it found all witnesses credible, honest and forthright, and the evidence suggested that the employees may well have real dissatisfaction with their current bargaining agent and the representation they have been receiving. At the same time, the Board's task and inquiry is to consider whether the petition and documentary evidence as filed represents a voluntary expression of the true wishes of the employees in the bargaining unit. For the reasons given above, whatever the general dissatisfaction might be, the Board is not prepared to accept that the petition itself represented the voluntary wishes of the employees.
[20]. 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 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 17, 1985, the terminal date fixed for this application. Accordingly, as the statutory requirement for the directing of a representation vote has not been met, this application must be dismissed.
DECISION OF BOARD MEMBER W. A. CORRELL;
I cannot agree with the decision of the majority in the above matter.
My dissent is based on:
i) the excessive weight given to evidence that one of the applicants is a friend of a member of management and alleged consequences that could flow from that fact.
ii) the lack of weight given to evidence that there were honest and valid reasons for members to seek a decertification proceeding.
iii) the lack of weight given to evidence that contact between members of management and the vast majority of members of the unit was infrequent to an unusual extent.
iv) the application of findings in certain other cases when the extension of the logic becomes exceptionally thin.
v) the opportunity to clear up the web of suspicions about the solidarity of the membership and to either free those members from an unwanted relationship with this particular union or to prove to management that the members have the union they want. A secret ballot could clear the air and provide the basis for harmonious relations.
- No evidence was given, and no witnesses called to support the suspicion or obligation that "the friendship" of one applicant to the most junior member of the management group had intimidated anyone. It remains a suspicion and an allegation. The union representatives made no effort to call or subpoena other members of the bargaining unit to give evidence in this regard. Evidence was given that members knew the nature and substance of the petition, were in some cases "proud" to sign and were waiting (not avoiding in any way) for the applicants to bring the petition sheets to them.
The fact is that many members of the unit signed the other applicants petition and some members of the bargaining unit did not sign the petition. They were not apparently intimidated. The Board is responsible to act with vigilance and be scrupulous in it's investigation. The Board must also act in a balanced way. The applicants in their efforts to bring forth a petition were certainly vigilant and scrupulous in avoiding any of the other pitfalls that would have certainly denied their petition. They must question, the balance of the Board's investigation in the explanation that a person's friendship somehow becomes the basis for the intimidation of some unit members.
The applicants and other members of the bargaining unit had good motivation in their opinion to seek a decertification. In evidence they said that the union was "not doing them any good". They apparently resented the amount of dues. They particularly resented the fact that the meetings were held at places that were not close to their residences in Quebec. They also were annoyed that the meetings were held in English with an inadequate translator and that the collective agreement was in English and not translated into French until very late in the contract term. They did not like the bargain that was struck and took pains to reject an interim wage increase by secret ballot at a union meeting. It was stated by one applicant that when questions were asked of union officers they were referred to the collective agreement, written in English. As we heard in testimony many of the members of the unit do not speak English. Those facts should be given important weight as they indicate the basis of the motivation to seek a decertification.
The management presence at the scene of the operations was by normal business organization standards unusually small. Evidence showed that the contact of employees with the foreman was through lead hands who were members of the unit. Other employees did not see or speak to even first level management except on rare occasions. The significance of this fact is that there was very little opportunity for management to influence employee attitudes about the union. The Applicant who was friendly with the foreman outside of working hours testified that the foreman did not want to talk about work and unions. It can be concluded that management propaganda or other influence was not a factor in the decision of bargaining union members to seek decertification.
Finally I believe this Board should have taken a longer term view of the union! management relationship in this case. There seems to be a strong feeling against this union among the members. Their reasons were recited in testimony and not challenged. Management can hardly be expected to work seriously and sincerely with a union in that atmosphere. If the employees are sincere in their desire to decertify this union then it would be fair to give them that opportunity in a secret ballot. If on the other hand the union is right that the members were intimidated then the members should be allowed to declare their support of the union through the secret ballot. Such support would then be proof to management that any suspicions of lack of support for the union are false. In that atmosphere management could then work with the union towards developing lasting relationships.
It is for these reasons that I dissent from the majority decision and would have supported a decision directing a representation vote.