[1987] OLRB Rep. January 34
0897-86-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (C.A.W. - Canada), Applicant, V. Starcan Corporation c.o.b. Concorde Metal Stampings, Respondent, v. Group of Employees, Objectors
BEFORE: Vice-Chairman R. 0. MacDowell, and Board Members I. M. Stamp and David Patterson
APPEARANCES: L. A. MacLean, Q. C., Clare Meneghini, Ken Simpson, H. Mitic and Darlene McAlgy for the applicant; Anne Sorenson, A. Chabola and Ray Quenneville for the respondent; R.G. McLister, Sue Jackson, Gertrude Rhea, Joan Armstrong, Nancy Somerville, Roberta White, Wilfred R. Lalonde and Gregory James Lumley for the objectors.
DECISION OF THE BOARD; January 8, 1987
This is an application for certification. In order to put this decision in context, it is necessary to sketch in some background.
As its name suggests, the respondent employer is in the metal stampings business. It has a small plant in Tilbury, Ontario. The company employs approximately 100 employees, most of whom work on a full-time basis. The applicant is a national union which came into being when the Canadian section of the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) separated from its American parent organization. For ease of exposition, we will refer to the applicant as "the union" and the respondent as "the employer" or "the company".
In mid June 1986, the union commenced an organizing campaign among the company's employees. It had some initial success. This certification application was filed on June 27, 1986. The Board directed that Notices of this application, in Form 6, be posted on the company's premises in prominent places where they would most likely come to the attention of the employees potentially affected. The Notice indicates, among other things, that employees objecting to the union's certification should do so in writing, and that objecting employees would have an opportunity to make representations to the Board at a hearing which would take place on July 25, 1986.
By the date of the hearing, the Board had before it documentary evidence of union membership filed (prior to the terminal date) on behalf of more than fifty-five per cent of the employees in the bargaining unit (which the parties agreed upon and which is set out, more specifically, in paragraph 5 of the Board's decision of July 29, 1986). That evidence took the form of union membership cards, which consist of a combination application for and acceptance of membership, together with a portion indicating that at least $1.00 has been paid in respect of union dues. Each card is signed by the employee, and, in addition, it is countersigned by the individual who solicited his/her support, to verify that the initiation fee has been received. The documentary evidence of membership is supported by a properly completed Form 9 Statutory Declaration attesting to its regularity and sufficiency. At the time of the Board hearing on July 25, 1986, there is nothing on the record to indicate that, there was any allegation of impropriety in the solicitation of these membership cards, or any assertion that they did not represent the voluntary wishes of the employees who had signed them.
By the date of the hearing there was also before the Board a statement in the form of a petition, filed in a timely manner, signed by a number of employees, and indicating that they were opposed to the certification of the applicant union. This document included the names of some individuals who had previously signed union membership cards, and had purportedly had a "change of heart" about the value of trade union representation. In addition, there was yet another document filed by an employee who had first signed a membership card, then signed the petition in opposition to the union, then later signed a subsequent reaffirmation of membership support. Obviously, there was some ambivalence on the part of some employees, about the value of trade union representation.
On the day of the hearing, the union, the employer and the objecting employees were all represented. The parties agreed that the union's right to represent the employees should be determined by a secret ballot vote conducted and supervised by the Board. This resolution of the case was, in fact, consistent with the submission by the objectors that there should be a representatiofl vote. It was agreed that the vote should be taken on Wednesday, September 3, 1986 at the company's premises in Tilbury, Ontario. There was, and is, no dispute about the composition of the voters' list. Notices were posted to advise employees of the purpose of the vote.
The Board directed and conducted a representation vote in accordance with the parties' agreement. Between the date of the hearing (July 25th) and the date of the vote (September 3rd), there was no allegation of irregular conduct, intimidation, illegal campaigning, or any other impropriety. There was no suggestion, from anyone, that the vote would not reflect the employees' true wishes, or should be postponed, or should be conducted with any extraordinary safeguards.
The vote took place as scheduled. The union, the employer and the objecting employees appointed scrutineers. There were 99 persons on the revised voters' list. All eligible voters cast ballots. The union, the employer, and the representative of the objecting employees, all agreed that those ballots should be counted. Once again, there was no suggestion, by anyone, that those ballots would not accurately reflect the wishes of the employees who cast them. There was no request that the ballot box be sealed and the ballots not counted until outstanding concerns could be investigated or pursued. There were no concerns raised at all. All parties were content to get on with the count.
The count, when completed, revealed that more than fifty per cent of the employees hall voted in favour of trade union representation. Following the count, the representatives of the union, the employer and the objecting employees executed a "certification of conduct of election" form which reads as follows:
We, the undersigned, acted as scrutineers for the parties herein in the conduct of the balloting at the time and place above mentioned. We certify that the balloting was fairly conducted and that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.
After the vote had been counted and the results recorded, the Board official prepared a Returning Officer's report. A notice of that report, in Form 70, was posted on the company's premises. It indicated that the union supporters, by a majority, had won the vote. It further advised that if anyone had representations to make concerning the representation vote or the conclusions the Board should reach in view of its results, such representations should be directed to the Board in writing.
Quite a number of the employees took the opportunity to write to the Board. They asserted either that the union should not be certified despite the results of the vote, or that the Board should direct a new vote. Their particular submissions will be referred to in more detail later. At this point, it is sufficient to note that, with only a couple of exceptions, these current objectors did not sign union membership cards and are the same individuals that supported the petition opposing certification and requesting a representation vote. They now resist the consequences which would ordinarily flow from that vote: namely, certification of the union as the employees' bargaining agent.
Counsel for the union argues that, since the union "won the vote", the Board should issue a certificate so that the union can get on with the process of collective bargaining. Counsel asserts that the continuing opposition by union opponents has frustrated the will of the majority. He characterizes the arguments now advanced by the objectors as irrelevant, insubstantial, nebulous, vague, speculative, and, for the most part, untimely. He asks rhetorically: if the objectors were so concerned about the allegedly improper influences exerted on them, or said to be prevalent in the work-place, why did those concerns only surface after the vote had been taken and the ballots counted? He further argues that even if all of the allegations are true, they would not support the remedy requested.
Why do the objectors assert that the Board should not give effect to the representation vote? Their reasons are many and varied. We shall deal with them below, preserving the anonymity of the particular complainants~ as we were asked to do. We should note, however, that these complaints were initially filed without the benefit of legal advice, and counsel for the objectors quite candidly conceded that a number of them were not relevant to the remedy urged upon us. That is why the Board accepted the union's submission that we should review the allegations, one by one, to identify those upon which the objectors really relied. The Board then called upon the objectors to address the argument that even if all that they asserted was true, it would not prompt the Board to dismiss the application or set aside the representation vote. It appeared to the Board that, it would make little sense to embark upon time-consuming and expensive litigation where the allegations, if proved, would not support the remedy requested; moreover some of the objectors indicated a reluctance to identify themselves and give evidence (as they would have to do to prove their case). If their evidence would not be determinative in any event, there was no reason to put their allegations to the test of proof and thereby reveal their identities. It was also apparent that the Board could not possibly complete the objectors' evidence on Friday, November 21, 1986, the initial day of hearing, and could not properly even begin that evidence, because the union had not been supplied with sufficient particulars of the objectors' allegations. Accordingly, the Board called upon counsel for the objectors to outline his argument for the relief requested, assuming the truth of all that his employee clients had alleged.
It will be convenient to begin with those items which counsel conceded or the Board ruled were irrelevant, untimely, or would not cast doubt upon the validity of a representation vote. We will then turn to those items which are (arguably at least) more substantive, for in the flurry of employee submissions which followed the release of the results of the representation vote, these classes of complaint were intermingled. For our purposes, however, it is best to separate them. In keeping with the employees' wishes, we will not identify the complainants unless it is necessary to do so. We may therefore occasionally refer to particular employees by a single number or letter of the alphabet.
The objectors' submission consists of a covering letter containing the names of a number of employees and a number of specific complaints. Attached to it are a series of individual written statements from particular employees. There is a generalized allegation of "intimidation", (without particulars), but counsel does not rely upon it. He does rely upon some of the more specific complaints set out in the written material.
The covering letter complains that there were a number of people who were not approached to sign union membership cards (during the organizing campaign in June 1986]. The objectors protest that the union told some of their fellow employees that, with union representation, they would have better jobs, better wages, and better job security. They could have a "clean record every six months" and that, if they were unsatisfied, the union could be "voted out" after one year's time. The objectors charge that some employees were not fully informed of union meetings and that a union representative indicated that at a particular union meeting, only those interested in joining the union would be invited. The objectors complain that (in their opinion) most of their fellow employees do not really understand what the union can or cannot do for them, and that during the organizing campaign they were "misled" into "believing things that may never happen". This assertion was not particularized further, but essentially amounts to the charge that their fellow employees did not know what they were doing when they chose to support the union.
It will be remembered, however, that the employees had several opportunities to signify their views: by signing a union membership card, by signing a statement of opposition circulated by the objectors, and in the representation vote where employees were asked to indicate whether or not they wished to be represented by the union. Notices of that vote, and its purpose, were posted in prominent places on the employer's premises. All parties, including the objecting employees, had about six weeks to "campaign" in favour of their particular viewpoint. There is no dispute that there was an active campaign. While employees may have been influenced by union objectives or promises which depend for their fulfillment upon the success of negotiations, that is no reason to set aside the vote. If promises which may be difficult to fulfill were grounds for setting aside an election, few federal or provincial elections in recent years would withstand scrutiny.
Employee "Q" writes to complain about his "predicament" since the union vote, and to allege that he is being harassed, and called "ignorant names". He says that a gas cap was stolen from his van and that he heard "through the grapevine" that there would shortly be an election of union officers, and that only those persons who were union members would be allowed to elect officers. He asserts that this is "discrimination". Counsel does not rely upon this item. Another employee cited another conversation with a fellow worker following the representation vote in which that fellow worker was asked to speculate upon the situation of the employees who were not then union members. Counsel does not rely upon that conversation either. Both involve events following the vote and are not logically connected to its conduct or outcome.
"C" objects that s/he was never approached to sign a union card and did not know that there was a union meeting. "A", "M" and "R" protest that they were not invited to certain union meetings during the organizing campaign in July (i.e. before the certification hearing) - even though they were not, at that time, union supporters. Four employees protest a later notice sent to union members advising of a meeting to which, they say, they were not invited. They feel this is a form of "discrimination".
But there is no obligation upon the union to invite non-members to its meetings; and leaving aside, for the moment, the question of how the union could be expected to mail copies of a meeting notice to persons who, by and large, had not signed membership cards or given the union their addresses, this description of the notice in the foregoing paragraph is a complete misreading of the document to which the objectors refer. That notice, on its face, is quite clearly addressed to all bargaining unit members and urges employees to "make every effort to attend and remind your workmates as well". The stated purpose of the meeting is the election of a negotiating committee. The notice states that "only CAW members can participate in this meeting, however there will be CAW application for membership cards available for those who are not yet members". We find it difficult to appreciate the basis of the objectors' complaint, unless they are suggesting some right to participate in the affairs of the union even though they are not members and still oppose the process of collective bargaining for which purpose the negotiating committee was to be constituted. The notice, in any event, was issued, well after the vote. When pressed, counsel indicated that he did not rely upon this item either. We include it for the purpose of completeness.
Employee "E" complains that during the organizing campaign she was harassed by "F" to use her influence to persuade another employee to sign a membership card. According to "E", she tried to ignore the entreaty and walked away. This allegedly occurred on July 3, 1986, three weeks before the first certification hearing and two months before the representation vote. It is simply too late to raise it now, nor is it connected to the employees' participation in the representation vote. Similarly, it is too late for "G" to complain that during the organizing campaign he received numerous late night phone calls urging him to join the union (He didn't).
Employee "I" complains that on August 7, 1986, while walking to get gloves, she was "hassled". Employee "K" received phone calls on August 12th, August 14th and August 18th, to the effect that her attitude had better change as well as "her vote". The identity of the caller is not known. According to the objector, she said her piece and hung up. She also protests that her vehicle was tampered with and that she was not invited to any union meetings or to sign a union membership card.
Counsel for the objectors places primary reliance on certain incidents of alleged property damage which occurred between July 26, 1986, and September 3, 1986, the date of the vote. The allegation is that the cars of six union opponents (including one nominal former supporter) were scratched or damaged in some way by persons unknown. Counsel for the objectors maintains that, in a small plant, everyone knew "where their fellow employees stood" on the question of union representation, and the scratched vehicles were most probably the work of union supporters. However, there is no indication about who might be the culprit and, perhaps surprisingly, one person whose car suffered damage was a union member who had not even taken part in the petition opposing the union. It is not obvious to us why she should assume union sponsorship of such act, even if someone said to her "payback is a bitch, isn't it, you have to vote the right way to keep things safe".
There is no allegation that an official of the union was involved in or condoned this property damage or the phone calls; nor, counsel concedes, has he any evidence to point to the involvement of any particular individual. He argues that it is a reasonable inference that the damage was perpetrated by one or more union supporters. Counsel for the union resists that inference and replies that, should this case proceed, there will be allegations that the damage to vehicles was not confined to union proponents - an assertion which we record but discount for the purposes of this decision. He argues that the conduct of hot-headed unidentified partisans should not be allowed to scuttle a representation vote, because, if the Board were to so rule, random damage "by persons unknown" could always sabotage and delay the process, even though there is no direct evidence of actual intimidation and no evidence that the applicant union was involved. Anyone so inclined could fairly easily frustrate the vote. Counsel points out that to hear the objectors' evidence, could delay this case for months, totally undermining the expeditious process of certification which is essential to the establishment of a sound collective bargaining relationship. As Estey C.J.O. (as he then was) put it, in Journal Publishing Co. of Ottawa Ltd. v. Ottawa Newspaper Guild et. al. (unreported, March 31,1977 Ont. C.A.): "the overriding principle invariably applied is that labour relations delayed are labour relations defeated and denied". Counsel urges the Board not to plunge this case into long hearings into matters which, he says, should not affect the ultimate result.
Counsel for the employer takes no position on any of these matters. In her submission, the employer's wish is to remain "neutral" as between two contending employee factions.
Counsel for the objectors maintains that when the above-mentioned phone calls, property damage, and "hassles" are viewed cumulatively, the Board should conclude that there was a tangible and pervasive atmosphere of "intimidation" which would prevent the employees from freely expressing their wishes for or against the union in the Board-supervised secret ballot vote. Counsel for the objectors does not suggest that any of his clients were themselves moved from their previously expressed opposition to the union. He argues that other employees may have been inflt~enced and, for that reason, there should, at the very least, be a new representation vote. He argues that even though no employee has actually pleaded that he was intimidated into changing his vote, that is a reasonable probability in the circumstances for at least some employees and that, therefore, another vote is necessary to clear the air. He asserts that his clients did not bring the above-mentioned problems to the Board's attention until after the vote results were released, because they were unsophisticated and did not fully appreciate their rights.
Decision
For the purposes of this decision, we have accepted, as true, all of the allegations contained in the employees' written statements of objection. We have then asked ourselves whether those factual assertions, assuming them to be true, would support the objectors' proposed disposition of this case: either dismissal of the certification application or the direction of a new representation vote. We have concluded that they would not.
It is obvious to us that the situation in the employer's plant is not a happy one. Its work force is divided into two warring camps: those who fervently support the union and those who fervently oppose it. That division was evident as early as July 25, 1986, when the Board recorded the "line up" of employees supporting and opposing the certification application, and there is no disputp that the organizing campaign has resulted in some bitterness and name-calling. It is an unhappy situation for both union and employer alike, because friction between employees undermines the union's solidarity and effectiveness and, at the same time, inhibits the employees' ability to work together as an effective team. However, the question is whether, against this background, punctuated by the mischief of over-zealous or vindictive (but unidentified) persons, the Board should give effect to the results of the representation vote.
We do not condone these sporadic acts of property damage (whoever may be responsible), nor are we sanguine about a work force divided into conflicting factions. However, where there are committed proponents on both sides, and a group "in the middle" who may be ambivalent, the ballot box is a great leveller, allowing employees to express their preferences with the assurance that their ultimate choice will be entirely confidential. There is no way that anyone can know how particular employees have voted; and, in this regard, the situation is quite different from that of trade union membership evidence or written statements opposing the Union where employees are invited to publicly record their allegiance one way or the other. Such public acknowledgments may well expose them to censure or antagonism whichever option they select, and where there is actual evidence of threats or intimidation, or, in the case of anti-union petitions, the perceived influence of management, the Board may disregard this documentary evidence or, where it is equivocal, seek the confirmatory evidence of a representation vote (see: Kendall Co. (Canada) Ltd. 1975 OLRB Reports August 611). The inherent secrecy of the voting process avoids most of these problems.
We accept the proposition that, in appropriate circumstances, an atmosphere of violence or threats of violence may impair an expression of employee free choice, just as an employer's threat of economic reprisals (such as a layoff or plant closure) may raise fears about the employees' job security and thus improperly influence the voting results; moreover because of the employer's control over job opportunities and rewards it is strategically placed to carry out such threats. Where the applicant union, as an institution, suggests that employees will be penalized because of the free exercise of their franchise, the Board may also be inclined to intervene. However, where the allegations concern friction between rank and file employees the effective administration of the Act and the achievement of its objectives requires a recognition of the fact that for some employees, union representation can be a volatile and emotional issue. Debate may degenerate into bad feelings, ruined friendship and recriminations. While the Board always has the authority to set aside a representation vote and order a new one, that is not a neutral decision, nor one which should be lightly taken and in our view should not be taken unless the occurrences are so serious and pervasive as to render improbable a reliable expression of employee wishes despite the sanctity of the ballot box.
Here, of course, save for the "hassles" mentioned above and perhaps the comment recorded in paragraph 23, there are no actual threats levelled against Union opponents or 'neutrals' and much of what is complained of is not connected logically or in time to the voting process. There is no allegation that any employee was actually induced to change his vote because of the events preceding the election. There is no assertion that the Union, as such, was involved in, condoned, or supported, any of the alleged improprieties. The election was conducted in a manner which ensured the secrecy of the ballot. The security and propriety of the election mechanism was certified by the objectors' own scrutineers. Prior to the balloting, no anti-Union objectors raised any concern whatsoever about what they now say was a "pervasive atmosphere of intimidation or coercion" which, they now say, totally poisoned and perverted the electoral process. Their representative on election day was quite content to count the ballots, without reservation. No concerns were raised until some days after it was announced that the Union supporters had prevailed.
This is not to say that employees who fail to raise their concerns, in a timely fashion prior to the vote, will be irrevocably precluded from doing so later, or to suggest that a party that agrees to counting the ballots will later be precluded from challenging the vote. This is not an area amenable to hard and fast rules, and we agree with the objector's counsel that some allowance must be made for unsophisticated or unrepresented employees. But, by the same token, if union opponents propose to challenge a secret ballot vote on the basis of a "pervasive atmosphere of intimidation" which renders its results unreliable, citing individual incidents which occurred in the weeks or months preceeding the vote, they must raise their concerns in a timely manner or risk the inference that they are reacting to the outcome of the vote rather than the allegedly negative atmosphere in which it was conducted.
Assuming all of the objectors' allegations to be true, we would not be disposed to disregard, or exercise our discretion under section 103(5) of the Act to set aside, the representation vote and order a new one. We are not persuaded that these sporadic acts of damage (however reprehensible, and whoever may be responsible) are sufficiently serious to warrant setting aside the vote. We are merely reinforced in that conclusion, by the fact that, prior to the announcement of the count, no one else raised any concern about the efficacy of the process either.
For the foregoing reasons, a certificate will issue to the applicant in respect of the bargaining unit defined in paragraph 5 of the Board's decision of July 29, 1986.