[1986] OLRB Rep. March 301
2234-85-R United Steelworkers of America, Applicant, v. Aurora Steel Service Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Ian C. Springate, Alternate Chairman, and Board Members F. W. Murray and S. O 'Flynn.
APPEARANCES: David Nicholson, John Harkins and Brando Paris for the applicant; William Challis for the respondent; Richard John Bayard for the objectors.
DECISION OF IAN C. SPRINGATE, ALTERNATE CHAIRMAN AND BOARD MEMBER F. W. MURRAY; March 21, 1986
This is an application for certification.
We find that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, we further find that all employees of the respondent in the Town of Aurora save and except forepersons, persons above the rank of foreperson, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
We are satisfied on the basis of all the evidence before us that the applicant has filed evidence of membership on behalf of more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made. This evidence of membership was filed prior to December 16, 1985, the terminal date fixed for this application and the date which we determine, under section 103(2)0) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
The respondent contends that the Board should not give any weight to union membership evidence obtained by Mr. James Pyle. Mr. Pyle is an employee of the respondent who acted as the collector with respect to most of the membership evidence filed by the applicant.
On December 2, 1985 Mr. Pyle was sitting in the company lunch room during working hours with some unsigned union cards. Two employees, Mr. Rick Bayard and Mr. John Fedotov separately came in to see him. Mr. Bayard and Mr. Fedotov testified that they were advised by another employee that Mr. Pyle wanted to see them. Mr. Pyle, however, testified that he did not send for the two employees, but rather they came to see him on their own initiative for the purpose of signing union cards.
Mr. Pyle testified that when Mr. Bayard and Mr. Fedotov came into the lunch room they expressed a desire to sign a union card and did so without any prompting. In cross-examination, however, Mr. Pyle acknowledged that on an earlier occasion when he had been talking to another employee, Grant Curnow, about the union he had asked Mr. Curnow not to raise the matter of the union with either Mr. Bayard or Mr. Fedotov. Mr. Pyle testified that he made this request of Mr. Curnow because he wanted to approach Mr. Bayard and Mr. Fedotov about the union in his own way. Mr. Bayard and Mr. Fedotov both testified that when they separately met with Mr. Pyle, Mr. Pyle indicated that if they did not join the union, they could lose their jobs when the union came in. Under cross-examination, Mr. Bayard denied that Mr. Pyle might have been talking about what might happen if the union were to negotiate a "closed shop" provision in a collective agreement and an employee then refused to join the union. In this regard it is of some interest that when giving his testimony Mr. Pyle stated that he was not aware of what a closed shop was, or that some collective agreements required union membership as a condition of employment. It was the testimony of both Mr. Bayard and Mr. Fedotov that they signed a union card to protect their jobs. Both stated that at the time they signed the cards they understood that Mr. Pyle was speaking on behalf of the union, although subsequently both felt he probably had been talking only on his own behalf. Mr. Fedotov testified that he reached this conclusion that Mr. Pyle had likely been talking on his own behalf after Mr. Pyle indicated he did not care about employee concerns for their jobs. According to Mr. Fedotov, from this comment of Mr. Pyle he concluded that Mr. Pyle was simply trying to use the union as a weapon against Mr. Chin, the president of the respondent.
It was the testimony of Mr. Fedotov and Mr. Bayard that Mr. Pyle had frequently expressed the view that once the applicant was certified, employees would be able to vote on whether the company would retain an employee by the name of Wayne Eagleson. Mr. Eagle-son appears to have been highly unpopular among certain employees. Mr. Pyle testified that while he had heard such a statement being made by others, he had not made such a claim. The company then called in reply Mr. Grant Curnow. Mr. Curnow testified that on November 28, 1985 Mr. Pyle had talked to him about joining the union, and in so doing had not made any threats to him. However, stated Mr. Curnow, Mr. Pyle had stated that when the union came in, a vote would be taken in which employees could vote out Mr. Eagleson.
The comments about a vote being held with respect to Mr. Eagleson are not directly relevant to these proceedings. However, we feel it noteworthy that Mr. Curnow, an employee who makes no allegation of improper conduct or threats on Mr. Pyle's part, stated that he had heard Mr. Pyle refer to such a vote. Given that Mr. Curnow ' s evidence on point supports that of Mr. Bayard and Mr. Fedotov, we are not prepared to accept as true Mr. Pyle's contention that he had not stated that employees could vote to get rid of Mr. Eagleson. Our conclusion that Mr. Pyle was not telling the truth on this point, leads us to accept the evidence of Mr. Bayard and Mr. Fedotov over that of Mr. Pyle concerning what was said in the lunch room on December 2, 1985. Accordingly, we are satisfied that in order to get them to sign union cards Mr. Pyle indicated to both Mr. Bayard and Mr. Fedotov that if they did not sign they might find themselves out of work.
Section 46 of the Act provides that under certain circumstances a collective agreement can require union membership as a condition of employment. However, such a requirement can generally only be included in a collective agreement after a clear majority of employees have already voluntarily selected the trade union as their bargaining agent. The use of threats of loss of employment by either an employer or a trade union simply has no place during the course of an organizing campaign.
It has long been the Board's practice not to give full weight to membership evidence obtained by the use of threats of loss of employment. See L.M. Welter Limited, [1965] OLRB Rep. April 34 and Chemtrusion Inc., [1979] OLRB Rep. Dec. 1150. A majority of the membership cards filed by the union are signed by Mr. Pyle as the collector. Given this fact, and our finding that Mr. Pyle used improper threats to get at least two employees to sign cards, we are of the view that this is an appropriate case in which to obtain the confirmatory views of employees in a representation vote.
This matter is currently set for continuation of hearing on March 26, 1986. Given our conclusion that a representation vote should be conducted among employees in the bargaining unit, the Registrar is to consult with the parties to ascertain whether any useful purpose will be achieved by continuing the hearing.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER SEAN O'FLYNN;
The majority based their decision on the credibility of Mr. Pyle, an employee with Aurora Steel Service Limited. Mr. Bayard, Mr. Fedotov and Mr. Curnow, a witness called by the employer, all said that Mr. Pyle had told them that if the union came in, an employee by the name of Mr. Eagleson could be voted out of his job. Mr. Pyle denied making that statement. Mr. Bayard and Mr. Fedotov further claimed that Mr. Pyle said that if they did not join the union, they could lose their jobs. On the other hand, Mr. Curnow said that Mr. Pyle had made no threats when he talked to him about joining the union. On the basis of the above discrepancies, the majority rejected the evidence of Mr. Pyle. I dissent from the majority decision. I gave the benefit of the doubt to Mr. Pyle, recognizing that there was room for confusion and misunderstanding.
The role that the OLRB allows employers to play in certification hearings offends commonly-accepted standards of fairness and justice. The vast majority of workers have to work for someone or for a corporation in order to live. In these days of high unemployment and particularly in the absence of available full-time jobs, workers are very dependent and are often scared of doing anything that might earn them the displeasure of their boss. In my experience employers who appear before the OLRB in certification hearings do so, in the main, in order to try to stop their employees from joining a union. Their real interest is to preserve their complete control over their employees. They don't put it like that, of course not. They assume the role of the altruistic white knight charging to protect their defenseless workers from being coerced or duped into joining unions. So they exercise all their pervasive and persuasive power in the work place directly or indirectly, threatening workers and organizing petitions against the union. Only employers who are stupid or blatant in their illegal activities get caught. Yet they are allowed to participate in certification hearings and pretend that they are acting in the interests of working men and women. There is a real conflict between the interests of employers and the interests of workers on issues of membership representation.
At the moment, employers are busy speaking out against the proposed Equal Pay Legislation. What are they saying? They claim that if this proposal is passed into legislation, it will hurt the interests of working women. That's a self-serving stance if ever there was one.
It is difficult to expose this kind of hypocrisy. Corporations do not have a mandate to speak out in the interests of working people. On the contrary, the Corporations Act dictates that corporations must act in the interests of their owners. History tells us that that is what they have done. Employers have fought against every piece of legislation that improved the position of working men and women in society. They opposed proposed legislation on child labour, on health and safety, on minimum wages, on protecting our water and our environment, to name but a few issues. That's the reality and the Ontario Labour Relations Act does not reflect that reality.
- The employers are allowed to make representations at certification hearings on membership evidence and they do. There is a real conflict of interest here. The employer wants the non-union situation to continue, because dealing with employees on a one-to-one basis preserves his power and leaves the employees weak. Doctors, lawyers, teachers, nurses, and auto workers, amongst others, know that by joining together they are better able to protect and expand their interests and that's why they have formed unions. If it's good enough for doctors to have a strong union to act on their behalf, then it's good enough for working men and women to have a union. The involvement of employers at certification hearings is a strong disincentive to employees joining unions. The law should be amended to limit the participation of the employer to giving input on the shape of the bargaining unit. A model for such a change is section 32 of the Labour Code of Quebec which reads:
"Only the employees included in the bargaining unit and the interested Association of employees are deemed interested parties in determining the representative nature of the Association."
The dependency of employees in the work place demands that the employer be excluded from involvement in any issue touching on the wishes of employees to join or not to join a union.