National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Venture Industries Canada, Ltd., 1989 CanLII 3012

[1989] OLRB Rep. October 1074

3532-87-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Venture Industries Canada, Ltd., Respondent v. Group of Employees, Objectors

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members M. Rozenberg and M. Jones.

DECISION OF THE BOARD; October 6, 1989

1. By previous decision of the Board, we issued a "bottom-line" decision in this matter, granted a certificate to the applicant, and indicated that our reasons for that decision would follow. We now provide our reasons.

2. Although the Board heard the evidence and representations of the parties in respect of

a number of issues over numerous days of hearing, as indicated in our earlier decision, many of the issues and matters in dispute were resolved amongst the parties during the course of the hearing. Therefore, as stated in paragraph 5 of our earlier decision,

the only matters which remained in dispute were those allegations which had been filed by both the respondent and the objecting employees. The substance of these allegations was that all, or at the very least a portion of the membership evidence obtained by the applicant and filed in support of this application was "tainted" by the improper conduct of Mr. Terry Varney . It was alleged that Mr. Varney had acted in a manner contrary to the Labour Relations Act to obtain membership evidence to support this application insofar as he had threatened, intimi­dated and coerced employees contrary to section 70 of the Act, and had improperly and in a misleading manner referred to the applicant's "two-tier initiation" fee structure. Counsel sub­mitted that Mr. 'Varney's conduct cast sufficient doubt on the membership evidence filed to cause this Board to dismiss the application, or in the alternative order a representation vote to be conducted.

3. The union's organizing campaign at Venture covered a period of approximately two months. From the totality of the evidence we conclude that during that period of time there were significant, and at times heated, conversations and communications between and amongst those involved or affected by the campaign. Those conversations and communications were not merely restricted to communications between employees who held opposing views. The evidence discloses that both the respondent employer and the applicant trade union each engaged in a campaign of communication with employees in which each party attempted to convey to the employees infor­mation and their respective opinions or viewpoints on the matter of certification. Both parties, either directly and indirectly sought to acquire the "loyalty" of the employees by encouraging employees to sign or not to sign union membership cards. From the evidence it would appear that the matter of unionization was frequently discussed and at times hotly debated. It is within this context that we turn to examine the evidence of the witnesses called by the respondent employer and the objecting employees in support of their allegations.

4. Sherry Bea ("Bea") was one of the employees called by the respondent in support of its allegations. The substance of her testimony indicates that Bea, an opponent to the union's organizing drive, and Terry Varney ("Varney "), an employee collector who was actively promoting the union, became involved in some very lively discussions. During these discussions or confronta­tions, voices were raised. Bea testified that she felt intimidated and harassed by Varney because of the tone of his voice, his derogatory comments to her, and his physical presence. In this regard Bea testified that Varney's voice was high-pitched and excitable, that Varney called her stupid and accused her of not caring about her fellow employees, and during their exchange moved increas­ingly closer to her, eventually standing so close that his face was only four or five inches from Bea's face. In respect of this latter evidence, Bea admitted in cross-examination that she was never physi­cally threatened but felt intimidated because of Varney's "forcefulness". There is no evidence that she was physically threatened or intimidated. In his testimony Varney denied Bea's allegations. Notwithstanding Varney's "forcefulness", Bea remained firm in her convictions in opposition to the trade union.

5. In our view, we need not resolve the conflict in the testimony of these two witnesses. From the totality of the evidence we find that there were undoubtedly some heated discussions in the workplace as those in favour of, and those in opposition to the trade union, voiced their respec­tive opinions. Such heated discussions are not unusual. Even if we were to accept Bea's evidence in its totality, we cannot find that the conduct or actions of Varney towards Bea involved any intimi­dation or coercion within the meaning of the Act. In this regard we adopt the words of the Board in Dupont of Canada Limited, [1961] OLRB Rep. Jan. 360 where the Board said at page 361:

We do not think that the Board was constituted to act as a censor of social pressures used either to persuade employees to join or not to join a union or to oppose or not to oppose a union unless the pressure is of such a nature that it places a person's employment in jeopardy either directly or by implication.

(See also The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611; Alderbrook industries Limited, [1981] OLRB Rep. Oct. 1331.

6. Bea also testified that she had heard Varney tell two employees, Ms. Pam Griffore ("Griffore") and Mr. Brad Pask that if those employees joined the union and signed cards they would have greater seniority than persons who did not sign cards. Bea did not know what Varney meant by that comment. Mr. Pask was not called to testify. Although Griffore testified about other matters, she could not remember any conversation with Varney dealing with the issue of how join­ing the union could affect an employee's seniority. The only evidence in respect of this issue is therefore the somewhat vague and indirect evidence of Bea. This is to be contrasted with the direct evidence of Varney who denied the accuracy of Bea's evidence and who testified that, in answering questions regarding seniority, he merely advised employees that any issues regarding seniority would be determined at the bargaining table. From the totality of this evidence we find that the respondent has not met the burden of proof in respect of its allegation that "Varney frequently suggested that employees who did not sign a union card would not have bargaining unit seniority." The evidence before us is insufficient to establish that allegation.

7. The Board also heard the evidence of Susan Santsche ("Santsche") another employee in the bargaining unit. Santsche was called by the respondent and initially testified only about the unfriendly attitude which Varney and Ms. Joey Gander ("Gander") exhibited towards her after she indicated she needed more time and information before she would sign a union card. Gander was also an employee collector. Santsche did not at first testify in any manner which supported the allegation that either Varney or Gander had coerced or threatened her in a manner which contra­vened section 70 of the Labour Relations Act in order to get her to sign a union card. Thereafter, Santsche was confronted with her own hand-written statement, dated April 7, 1988 and a typewrit­ten document entitled "Witness Statement" which she signed on May 4, 1988. It was asserted that these statements were prior inconsistent statements. After further examination, and after hearing the submissions of the parties, the Board entered these statements as exhibits and permitted coun­sel for the respondent to cross-examine the witness about the circumstances under which the state­ments were made, the contents of the statements, and the alleged inconsistencies between the writ­ten statements and the witnesses' evidence in chief.

8. The hand written statement was written and signed by Santsche and is dated April 7, 1988. That statement also refers to the hostile or unfriendly attitude exhibited towards Santsche by Varney and Gander because of Santsche's refusal to sign a union card. Thus, the statement states:

Right then I told Terry that I was not interested. After that at work neither Terry nor Joey would speak to me. If Terry did speak, he had nothing nice to say. I then signed against the union.

When I was leaving work one night Terry started on me that I was a bitch because I had never signed.

After I signed a union card Terry spoke to me. Even Joey was much nicer to work with. The reason I signed was that I found that it was very hard to work and listen to Joey talk about the union. But after I signed I never heard a thing. The way I looked at it you weren't only signing a union card but you were signing for your friendship.

In our view, these alleged actions by Varney and Gander fall within the realm of "social pressure" used either to persuade employees to join or not join a union. Through these forms of social and peer pressure, employees attempt to show their disfavour with decisions made by other employees. Although we do not countenance such behaviour, it does not relate directly to the recipient's employment and does not either directly or by implication threaten their job security.

9. The same cannot be said however, for certain other statements made in this hand writ­ten document. These statements relate directly to Santsche's job security and threats made by both Varney and Gander about Santsche's continued job security in the event she did not sign a union card. Santsche wrote:

When I began working with Joey she then started telling me that "everyone" who signed against the union was going to lose their jobs [sic] because the union was going to be in soon. I then started to get worried.

and she told me not to expect a job when the union got in. Finally, I signed a union card.

Santsche testified that she wrote this statement in the privacy of her own home after speaking with Mr. Brad Pask, a fellow employee. Mr. Pask was also one of the originators and circulators of the petition. Although Mr. Pask did not tell Santsche to write out the statement, he did advise her that this was one of the things she could do. Santsche said she wrote out the statement "because I didn't think that it was fair, what was happening to me. Terry not speaking to me."

10. In cross-examination, Santsche indicated that she wrote the statement about a week or two after she spoke to Brad Pask about these matters. We note that Santsche signed a membership card on March 28, 1988, more than a week before she wrote out her written statement. Santsche eventually gave this written statement to Brad Pask.

11. At some later point in time, Santsche met with a lawyer for the respondent in the offices at the plant. That lawyer went over her statement with her. Subsequently, the typewritten "Wit­ness Statement" was provided by the lawyer for Santsche's approval and ultimate signature. Santsche signed that written statement on May 4, 1988. In that signed document, Santsche states inter alia:

One night Joey said "people who voted against the union will know it when it gets here. They will not have jobs because they will be laid off or fired." I asked her why. She said "we are going to Court over it because the company's writing false letters and having people not sign Membership Cards.

……Joey said "the dollar I paid now would be a good start on the union dues when the union came in. She also said that the union had overwhelming numbers. I was afraid to ask them to leave because they intimidated me. I believed that since the union had such overwhelming num­bers I should sign a Membership Card now so that it would not cost me more later.

……I believed I would lose my job if I did not sign a union card because they could have me fired if I wasn't a member. I believed it would cost me more to join the union later.

……Another time while we were working on the line, Joey said "people that started petitions against the union would be in a lot of trouble." This was in response to my asking Joey if any­thing would happen to people who signed against the union.

…..During the course of the past five months I have been harassed and intimidated by Terry Varney and Joey Gander, organizers for the CAW. I have been led to believe the only way to keep my job was to do what Joey and Terry said because otherwise I would have to be fired at the request of the union.

12. That written statement also contain various references to the animosity exhibited by Varney and Gander towards Santsche until Santsche signed a union card. Santsche testified she signed the membership card when Gander and Varney attended at her apartment.

13. If the Board had been satisfied, on the balance of probabilities, that the various state­ments about which Santsche testified were in fact made to her by Varney and Gander, we would at a minimum have disallowed Santsche's card and would have viewed the weight to be given to the membership evidence collected by Gander and Varney in a different manner. The Board does not countenance these types of statements regardless of whether they are made by a union official or a person of lesser rank in the union's organizing drive who is attempting to obtain support for the union. Although in determining the effect of this type of improper behaviour the Board has distin­guished between statements made by full-time union organizers and officials, and statements made by rank and file employee collectors, the cases leave little doubt that statements such as those alleged in Santsche written "Witness Statement" violate section 70 of the Act. Such statements clearly relate to job security, are coercive and threatening and seriously impair the reliance which the Board can place on membership evidence submitted in support of the application. If sufficient evidence of such statements was before the Board we would be concerned that the membership evidence was not sufficient voluntary evidence of membership by either Santsche or, depending on the circumstances, others who may have signed membership cards. (See for example, L. M. Welter Limited, [1965] OLRB Rep. April 34, Crenmar Services Limited, [1978] OLRB Rep. Jan. 48, The Kendall Company (Canada) Limited, supra, Intermodal Marine Surveys Ltd., [1979] OLRB Rep. April 321, PRC Chemical Corporation of Canada Ltd.,[1980] OLRB Rep. Dec. 1805, Aurora Steel Service Limited, [1986] OLRB Rep. March 301.

14. On the basis of the evidence before us however, we find that the respondent has not met the burden of proof cast upon it. We are not satisfied, on a balance of probabilities that such statements were in fact made. Notwithstanding the written statements, in her viva voce evidence before us, Santsche was uncertain and equivocal. Notwithstanding counsel's skilful cross-examina­tion, Santsche did not expressly affirm the substantive portions of the written statements. Thus, for example, Santsche stated that it was "possible" Gander said everyone who signed against the union would lose their job. Santsche also testified that she could not recall whether Gander had made such a statement saying only "I can't remember at this time that it was said but I told the truth in this letter [the April 7, 1988 statement] so probably then it was said" [emphasis added]. In viva voce evidence, Santsche also was unable to recall or remember whether Gander in fact said "people who voted against the union will know it when it gets here, they will not have jobs because they will be laid off or fired.", stating she could only remember conversations about the company writing letters and people having to go to Court. Santsche had no recollection of Gander saying anything to her about "people that started petitions against the union would be in a lot of trouble" as stated in the Witness Statement she signed on May 4, 1988. She could not specify why she "believe[d) I would lose my job if I did not sign the union card because they could have me fired if I wasn't a union member. I believe it would cost me more to join the union later" (as alleged in the May 4, 1988's statement Santsche signed). Although Santsche testified that she believed everything in the statement she wrote was true, she could not point to anything that was said which would make her feel that she would lose her job. Santsche went no further than stating it was "possible" she felt that way because of Gander's alleged statement that "people who voted against the union will know it when it gets here. They will not have jobs because they will be laid off or fired." We note again that in her evidence before us however, Santsche did not affirm that such a statement was in fact made.

15. From the totality of her evidence we find that at the time of her testimony Santsche had no independent recollection of the very serious allegations of improper conduct which are con­tained in her written statements. In respect of those statements which form the core of a violation of a section 70 of the Act, her evidence was ambiguous, hazy and indefinite. At its best it went no further than that Santsche wanted to write the truth in her written statements and, at the time she wrote and/or signed the statements she honestly believed that the statements were true. Santsche admitted however, that at the time she wrote and signed the statements she was angry. She also admitted that each of the statements contained certain statements which were not truthful. With the exception of the statement that alleges Gander stated that "people who started petitions against the union would be in a lot of trouble" (a statement which Santsche acknowledged was not true), the false statements contained in the written statements generally relate to minor details. Thus, for example Santsche admitted Varney did not "yell at her" and did not call her a "bitch" as alleged in the first written statement. There are also inconsistencies between the two statements. Thus, Santsche originally wrote that Varney called her mother, left a message and she called him back (admittedly false statements and an untrue "colourization" of the surrounding events). Her subsequent witness statement indicates that Varney called Santsche's sister-in-law, and Santsche did not in fact return her call. Although these falsehoods relate to minor matters they do provide some guidance to the Board in assessing the weight to be given to the written statements and Santsche's viva voce evidence. Finally, we note that the first written statement was written and signed more than a week after Santsche signed the union membership card. It refers to events which are alleged to have occurred in the weeks preceding that event. It is therefore not a state­ment which can be said to be written at a time which is relatively contemporaneous with the events described in the statement. At best, it is Santsche's recollection of what she believed had tran­spired. It was written at the time she was angry and contains a number of false statements. In these circumstances and in view of Santsche's vague and irresolute evidence in respect of the matters contained in that written statement, we find that we can give little weight to either that written statement or her viva voce evidence.

16. Similarly, we find that we can place little reliance on the witness statement which Santsche signed on May 4, 1988. It also contains statements which Santsche acknowledges were not entirely truthful. Santsche admitted that at least part of the reason she signed the second witness statement was because she felt she had to carry through with what she had said in the first hand­written document and because she was afraid she might lose her job. In view of these factors, and again in light of Santsche's uncertain, vague and undecided testimony we find we can give little weight to her evidence. The evidence tendered is insufficient to support the allegation that either Varney or Gander intimidated or coerced Santsche to get her to sign a union card.

17. Pam Griffore ("Griffore") another employee in the bargaining unit also testified. We found Griffore to be a forthright witness who gave her testimony in an open and candid manner. Griffore had a clear and specific recollection of the various conversations she had with Varney. Where Griffore's evidence contradicts or is inconsistent with the evidence of any other witness, we have preferred the evidence of Griffore.

18. Griffore testified about several conversations she had with Varney. Both Griffore and her husband are friends with Varney. Mr. Griffore was also one of the employees who circulated and supported the petition in opposition to the union. Notwithstanding their opposing views to the union's application for certification, and the very vocal discussions which have occurred as a result of their differing opinions, Griffore and Varney continue to view each other as friends.

19. During the course of the organizing drive, Griffore was expecting a baby. She went on maternity leave the first week in March. Griffore testified that on several occasions Varney attempted to convince her to join the union. The occasions which prompted the allegation of a vio­lation of section 70 of the Act by the respondent against the applicant occurred while Griffore was a line inspector at the L/Body line. On this occasion, Varney approached Griffore and asked her if she had changed her mind about signing a union card. Griffore had previously advised Varney she did not wish to join the union. Griffore again told Varney she did not want to sign a card. In the ensuing conversation, Varney told Griffore that "because I was pregnant they could possibly lay me off anytime after I had maternity leave and would not call me back". Varney continued and told Griffore that if she signed the union card she would be guaranteed her job after she had the baby. Varney told Griffore that she was being selfish and was only thinking about herself and not the other employees. He advised Griffore that if she did not sign a card and the union did not get in he, Varney would not have a job. The substance of Griffore's testimony in respect of this con­versation was corroborated by Bea.

20. Varney on the other hand testified that he merely told Griffore that her position at the plant (meaning her position as line inspector and not her job) was not assured upon her return from maternity leave, and that the company could "shuffle her anywhere in the plant". In so doing, he referred to the Employee Handbook at Venture which states that upon return from a leave the company, "will endeavour to place you in your former position or an equivalent position, depending on the availability of such position." Varney's recollection of the conversation was corroborated by Ms. Cheryl Pask (Pask). Pask testified that both she and Griffore were told by Var­ney that upon their return from their respective leaves, they were not guaranteed that they would be returned to their position, but rather could be placed elsewhere in the plant. Pask herself was scheduled to commence a sickness and accident leave of absence in early March. During her cross-examination, Griffore denied Varney made any reference to the Employee Handbook and specifi­cally disagreed with the question put to her that Varney told her they did not have to hire her back to the same job. She reiterated that she was told by Varney that the company did not have to hire her back. She admitted however, that Varney also told her that if the respondent did hire her back the company would not have to give her back the same job. Griffore recalled that Pask also partici­pated in a conversation with Varney and Griffore at which this issue was discussed. Griffore tes­tified that she had somehow gained the impression that there was a difference in their respective positions because although she would be returning from maternity leave, Pask was returning from a medical leave.

21. Both Pask and Griffore testified that they met with Mr. Mike Pavlovic ("Pavlovic") the Plant Manger to discuss this matter. Griffore also testified however, that after her initial conversa­tion with Varney, she spoke to Paviovic alone.

22. Counsel for the respondents and the objecting employees argued that there was no inconsistency between the evidence of Griffore and Pask, as Pask related an incident and a conver­sation which occurred at a different time than the conversation between Griffore and Varney. Although the evidence was less than satisfactory in respect of this submission, after a review of the totality of the evidence and on a balance of probabilities we find that there were indeed two sepa­rate occasions when this matter was discussed with Griffore. On the occasion during which Grif­fore was told by Varney that she was not guaranteed her job upon the expiration of her maternity leave, Pask was not present. Pask was only present when Varney discussed the "position" which employees could be given upon their return from a leave. It is the first occasion and the first con­versation between Varney and Griffore which forms the basis of the complaint against the appli­cant and which we propose to address.

23. After her conversation with Varney, Griffore was very upset. She testified she was scared she was going to lose her job. Griffore also testified that she believed that if she would sign a union card she would be protected from lay-off, and if she did not sign a card she might lose her job. That same night however, she went alone to discuss the matter with Pavlovic. Pavlovic reas­sured her and told her that it was against the law for a company not to reinstate a person upon the expiration of a maternity leave. On the subsequent occasion when Griffore and Pask both spoke to Pavlovic, Griffore asked Pavlovic if she would still be a line inspector when she returned from maternity leave. Paviovic assured her that she would be returned to work as a line inspector. Grif­fore acknowledged that Varney had no authority or involvement in such managerial decisions as the hiring, firing, discipline or lay-off of employees. Despite Varney's statements, Griffore was not persuaded to sign a union membership card.

24. Counsel for the respondent submitted that these facts constitute "intimidation or coer­cion" within the meaning of section 70 of the Labour Relations Act. Counsel pointed to the fact that Varney, the perpetrator of the coercive and threatening statements to Griffore was the key union organizer generally recognized by employees in the plant as being "in charge" of the union's organizing campaign. Varney was in fact the collector of approximately thirty-three percent of the cards. The remainder of the cards were also collected by rank and file employees. Only the cards of some of the employee collectors were in turn collected by the union officials who were ultimately in charge of this organizing campaign. It was argued that because Varney was the "key" and "pri­mary" union organizer, and was perceived to be the "leader" of the organizing campaign, his actions ought to be judged in a manner similar to the standards imposed upon paid union organiz­ers or union officials. Counsel asserted that the actions, conduct and statements made by Varney were more than those of a mere rank and file employee expressing his own opinion. Counsel asserted that in the eyes of the employees Varney "walked in the shoes" of the union and thus his statements to employees were viewed more seriously by employees and would carry more weight with the employees. It was submitted that this Board should also view Varney's statements and conduct more seriously, because of his prominent role in the campaign. It was argued that Var­ney's comments threatened Griffore and directly linked her continued job security to union mem­bership. Counsel submitted that such threat of loss of one's job is intimidation which is contrary to section 70 and therefore this application ought to be dismissed. Alternatively, he urged the Board to discount all of the membership evidence collected by Varney and Gander (who had also threat­ened the job security of Santsche) or at the very least order a representation vote. Counsel for the objecting employees concurred with and adopted the submissions of counsel for the respondent. In support of these submissions counsel relied upon Walter E. Selck of Canada Ltd., [1964] OLRB Rep. June 138, VR/Wesson Limited, [1968] OLRB Rep. Nov. 811, The Kendall Company (Canada), supra, Intermodal Marine Surveys Limited, supra, Chemtrusion Inc. [1979] OLRB Rep. Dec. 1150, General Motors of Canada Limited, [1980] OLRB Rep. Oct. 1437, P.R.C. Chemical Corporation of Canada Limited, supra; T and F Construction Equipment Rental Limited, [1983] OLRB Rep. Dec. 2116 and Aurora Steel Service Limited, supra. In addition to these cases, in deciding this matter the Board has also considered Thames Steel Construction Ltd., [1980] OLRB Rep. April 545, Linhaven Home for the Aged, [1962] OLRB Rep. May 66, Reliance Electric Limited, [1979] OLRB Rep. Nov. 1107, Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138, Alderbrook Industries Limited, supra, Dupont of Canada Limited, suora, Green Giant of Canada Limited, [1973] OLRB Rep. June 376, Crenmar Services Limited, supra.

25. A review of these cases indicate that the tests and standard of conduct imposed upon various persons involved in organizing campaigns was accurately and succinctly summarized in General Motors of Canada Limited, supra, where the Board stated at page 1439:

26. The Board has in the past had numerous opportunities to review the standard to be applied in assessing the conduct of a rank and file employee, as opposed to a union official, in the collec­tion of membership evidence, and the consequences that flow from irregularities established in the collection of membership evidence by an employee. In reviewing the standard applicable to an employee-collector the Board commented as follows in The Kendall Company (Canada) [1975] OLRB Rep. Aug. 611 at p. 619:

In all cases alleging improper trade union conduct the Board first begins by assessing the nature of the conduct - the test being would it deter the reasonable employee? If the answer to this question is in the affirmative the Board must go on to assess the possible significance of the conduct and in this regard the identities of those persons involved are very important. Where the action impugned is that of a responsible offi­cial of the trade union a single indiscretion may cause the Board to conclude that it cannot place reliance on any of the evidence of membership submitted by the union. Where the irregularity relates to evidence of membership procured by a person of lesser rank in the union organization, the actual cards involved may be disallowed and the weight to be given to the remaining evidence of membership will depend on the nature of the irregularity and the extent to which the objectionable practice was resorted to in the signing up of members. (See Webster Air Equipment Company Ltd. 58 CLLC ¶18,110; Walter E. Seick of Canada Ltd., [1964] OLRB Rep. June 138; Linhaven Home for the Aged, [1962] OLRB Rep. May 66.)

15. Although the foregoing comments were made in the context of allegations of intimidation, we are satisfied that they are equally applicable where fraud or misrepresentation is alleged. In the Kendall case the Board exhaustively reviewed the standards to be applied to different types of conduct by employees soliciting union membership. As that decision discloses, the Board has a particular concern with threats to the job security of employees in attempts to gain their sup­port for a union, even when those threats are by a rank and file employee. On the other hand the Board has always sought to maintain a realistic appreciation of the need for free and unfet­tered conversation between fellow employees. In this regard, absent physical threats or threats to job security, the Board is careful not to place undue weight on a statement made by one employee to another on a subject in which neither of them is an expert, particularly when the recipient of the statement has every opportunity to check the statement's accuracy. (Green Giant of Canada Limited, [1973] OLRB Rep. June 376.)

16. Threats to job security have, however, been strictly viewed as beyond the bounds of employee free speech. For example, in Walter E. Selck of Canada Ltd., [1964] OLRB Rep. June 138 the union's campaign was under the exclusive direction of a rank and file employee who col­lected all but three of sixty-two membership cards. In the face of unchallenged evidence that the employee-collector told two employees that they would lose their jobs if they failed to join the union the Board dismissed the application, concluding that it could not, in the face of that estab­lished unfair labour practice, rely on any of the membership evidence filed. Where, however, a statement made by one employee to another in the course of a union campaign does not threaten an employee's job security or otherwise disclose an unfair labour practice different considerations apply. The Board is reluctant to hold the rank and file employee to the standard of a trained lawyer, or to impose censorship on the casual conversation that inevitably flows between employees during a union campaign. To do otherwise, in the words of the Board at p. 623 of Kendall, "would be oblivious to human nature and result in artificial standards that would adversely affect the rights of all employees under the legislation."

17. That is not to say, however, that a union can escape the consequences of irregular conduct by effectively placing its entire campaign in the hands of a rank and file employee. Where a per­son who is not a union official is charged with collecting all of the membership evidence and is found responsible for a non-pay (Slough Estates, [1965] OLRB Rep. June 173) or a non-sign (Dominion Stores Limited, [1964] OLRB Rep. Dec. 447) the Board may conclude that it can rely on none of the membership evidence filed and dismiss the application. Alternatively, in the face of such conduct by a person other than a union official, the Board may conclude that the documentary evidence is "under a cloud that requires the confirmatory evidence of a represen­tation vote." (Crock & Block Restaurant and Tavern, [1980] OLRB Rep. Apr. 424.) The same considerations apply when the conduct in question involves threats to employees' job security (see the Selck case, supra).

18. The Board's reluctance to restrict or limit talk that may flow between fellow employees dur­ing a union campaign should not, however, be taken as an indication that the Board will not scrutinize the statements of rank and file employees, particularly where it is clear that an employee charged with the collection of all the membership evidence has substantially misrepre­sented to employees to [sic] meaning of signing a union membership card. If the evidence estab­lishes that an employee collector has repeatedly obtained membership evidence by telling employees that by signing a card and paying a dollar they are in effect endorsing an application for a vote on the question of union representation, or if the Board cannot be satisfied to what extent such a representation was made, the Board may be unable to place any reliance whatever on the membership evidence filed, or it may seek the confirmatory evidence of a representation vote. In each case, however, the Board must consider the evidence in the particular case before it to make that determination.

19. This decision appears to enunciate and bring together two separate tests for determining whether there is doubt about the voluntariness of some or all of the membership evidence submit­ted in support of an application for certification. Application of either test to a particular fact situa­tion is usually sufficient. In a number of cases however, both tests have been applied. In the evi­dence before us we find that regardless of which test is applied to these facts, the respondent has not proven that the membership evidence submitted in support of this application is "tainted" and ought to be discounted or requires the confirmatory evidence of a representation vote.

20. The second of these tests is referred to in the latter portion of the quoted paragraphs and requires the Board to determine whether, on the evidence in any particular case, there is a "repeated" pattern (as opposed to a single, isolated incident) of threats or misrepresentations. This test or approach places less emphasis on whether the statements made by the rank and file employee were in fact intimidating or coercive, and concentrates more on the extent of the action of such rank and file employee to determine the impact of such statements on the membership evi­dence -- whether such a conduct places the documentary evidence "under a cloud". Where the Board concludes that there is such a cloud, it may seek the confirmatory evidence of a representa­tion vote notwithstanding that it was a "mere" rank and file employee, and not a union representa­tive, who made the statements or engaged in the coercive conduct. Thus, for example in Alderbrook Industries Limited, supra, the Board stated at 1333-1334 that:

21. Unfortunate as it may be, it is not uncommon for antagonism to be generated between employees who line up on opposite sides of a campaign for union representation. Statements by any person amounting to intimidation or coercion of an employee, whether they are made for or against a union, or clearly contrary to section 70 of the Labour Relations Act and are ground for a complaint under section 89 of the Act. They may also form the basis for criminal charges. It does not follow, however, that the indiscretions of employees, whether they favour a union or sympathize with their employer, are to be held against the principal parties to an application for certification. The Board can no more hold against a union a verbal threat made to an employ­ee's job security by an indiscrete employee who is neither a union officer nor a collector of union membership cards that it can hold against an employer similar threats made by a fervently anti-union employee acting on his own. Evidence of widespread threats which are made by nei­ther the employer nor the union might, of course, cause the Board to resort to the further evi­dence of a representation vote.

Similarly, in Linhaven Home for the Aged, Supra, the Board stated at page 68:

A review of the Board's decisions on matters of this kind leads to the conclusion that the Board distinguishes between the actions of union officials and representatives and those of rank and file employees. While in the former case a single threat of economic reprisal may be sufficient to cast doubt on all the evidence of membership submitted by the applicant to the extent of war­ranting outright dismissal of the application, in the case of a rank and file member, the weight to be given the remaining evidence of membership will depend on all the circumstances of the case. Factors which the Board will take into account include the nature of the irregularity and the extent to which the objectionable practices were resorted to in the organizational campaign.

[emphasis added]

28. This test is not applicable to the fact situation before us. In our view, notwithstanding counsel's submissions to the contrary, we do not have cogent evidence that the rank and file employee collectors in this instance engaged in a repeated pattern of improper conduct. Rather the evidence discloses an isolated instance, during the collection of some eighty-eight (88) union cards (excluding lost cards) in a bargaining unit of one hundred and thirty seven (137) in which Varney, a rank and file employee with no apparent experience in union organizing made an improper, inap­propriate and incorrect statement to a fellow employee whose support for the union he was solicit­ing. Had Griffore signed a union membership card we would have disallowed her membership card in the same manner and for the reasons similar to those enunciated by the Board in General Motors of Canada Limited (see also for example The Kendall Company (Canada) Limited, supra, Webster Air Equipment Company Ltd. 58 CLLC paragraph 18,110, Walter E. Selck of Canada Ltd., supra, Linhaven Home for the Aged, supra, Canadian Electric Box and Stampings Limited, [1964] OLRB Rep. Sept. 284. Griffore did not sign a union card however, and in our view, in the circumstances of this case this isolated incident is insufficient to "taint" the other documentary evi­dence of membership.

29. The other tests applied by the Board to the type of situation with which we are faced, can be found in the quotation from The Kendall Company (Canada) Limited decision. That test requires the Board "to first assess the nature of the conduct -- the test being would it deter the rea­sonable employee?" As indicated, if the answer to this question is yes, the Board will then go on to assess the significance of the conduct and in this respect the Board has also drawn a distinction between the identities of the persons who engaged in the conduct -- were they uninvolved rank and file employees? Rank and file employees collectors? Or paid union officials? We note that after reviewing a number of cases in this area, the Board in Kendall referred to one of the underlying rationales for these distinctions when it observed:

A reading of these cases demonstrates the Board's sensitivity to the realities of organizational activity. Improper conduct on the part of union officials my be symptomatic of much broader unlawful actions. Moreover, threats by trade union officials have a ring of malice that is qualita­tively different from the disfavour of a fellow employee caught up in the "heat" of campaign activity. A fellow employee's threat is likely to be recognized for what it is - "an isolated out­burst by a hot-headed partisan". Further, such persons are seldom capable of carrying out their threats and for this reason men and women of ordinary convictions are not likely to be inhibited from exercising rights under the Act,

30. The difficulty with this case is that Varney is neither a non-involved rank and file employee, nor is he a union official. Similarly, unlike the cases upon which counsel for the respon­dent relied, he was also not the "sole" or "exclusive" employee organizer as was the case in Walter E. Selck of Canada Ltd., supra, (where a single employee had exclusive direction of the union's campaign and collected all but three of the sixty-two membership cards) or PRC Chemical Corpo­ration of Canada Ltd., supra, (where the employee who engaged in the threatening conduct acted as collector on all the cards). Varney was not an outside "volunteer" organizer who, although not a paid-union official would have been perceived by employees in the bargaining unit as the repre­sentative of the union as was the case in Chemtrusion Inc., supra. Rather, Varney was a fellow employee who collected a portion of the membership cards. Given the membership evidence before us, and unlike the situation in the Aurora Steel Services Limited, supra, in this case it cannot be said that "a majority" of the cards were signed by Varney as collector. Moreover, the evidence discloses that for a significant period of time during the organizing campaign, from February 19, 1989 to March 29, 1989, Mr. Varney was unable to attend work because of salmonella poisoning. Although there is some evidence that during this time he did on occasion attend at the plant, he did not work during this entire period of time. His absence from the workplace during the crucial period of the organizing drive which immediately precedes the filing of the application (in this case March 23, 1988) combined with the fact that Varney was not in fact the collector of even a majority of the cards have caused us to conclude that in the circumstances of this case, his conduct should not be viewed in the same light and should not be judged against the same standards as those imposed upon union officials.

31. Applying the "Kendall" test, we find that Varney's statements to Griffore, and particu­larly statements to the effect that if she signed the union card she would be guaranteed her job after she returned from maternity leave, constitute improper conduct. That however, is not the end of the matter. There are in our view a number of significant factors which militate against the finding that this improper conduct impacted upon or adversely affects the documentary evidence submitted by the applicant union in support of its application.

32. First we note that the conversation between Varney and Griffore was essentially a "pri­vate" conversation relating to a very narrow issue which was personal to Griffore and affected only her status. There were very few employees who were privy of this conversation, and given the peculiar facts even fewer who could be affected by the substance of the conversation. Second, Grif­fore and Varney were at the time, and continue to be friends as well as fellow employees. Griffore acknowledged that Varney had no management status within the company and no authority to hire or fire. Viewed objectively, it cannot be said that Varney was, or could be perceived to have been in a position of carrying out the threat which counsel submits is inherent throughout the conversa­tion, namely if you do not sign a union card you may not have a job when you come back from maternity leave. Indeed, although that characterization of the effect and substance of the conversa­tion is possible and plausible, we do not view Griffore's evidence in the same terms. The state­ments made by Varney about which Griffore testified are somewhat vague. They are equally capa­ble of being interpreted as no more than a variation of the usual trade union assertion that without trade union representation and collective bargaining, an employee has no job security. Notwith­standing the fact that we accept Griffore's evidence that Varney referred to her job, and not merely her position at the plant as asserted by Varney, we find that given the vagueness and impre­cision of the statements it is difficult to state unequivocally that the statements assert or explain what the union will do (or will ask the employer to do) upon the expiration of her maternity leave if Griffore does not sign a card, or were merely claims of what the respondent could or would do regardless of whether Griffore signed a card.

33. This brings us directly to the third critical factor which has caused us to conclude that the statements do not affect the membership evidence submitted. Given Varney's position we find that a reasonable employee would have and should have checked the accuracy of the statements made by Varney. In this regard, we adopt those words of caution of the Board in General Motors of Canada that: "... the Board is careful not to place undue weight on a statement made by one employee to another on the subject in which neither of them is an expert, particularly where the recipient of the statement has every opportunity to check the statement's accuracy." A similar sentiment was expressed in re Canadian Electric Box and Stampings Ltd. [1964] OLRB Rep. Sept. 284.

34. Notwithstanding Varney's personal opinion or interpretations of the handbook, it was clear to this Board that Varney is not, and viewed objectively would not have been perceived by his fellow employees as an expert on either the company's personnel practices or the policies of the trade union. Griffore had every opportunity, and in fact availed herself of the opportunity to check out the accuracy of Varney's statements with those who were, in her view, truly knowledgeable about this matter -- the Plant Manager. Immediately upon being faced with Varney's statements, Griffore went to Pavlovic to see if Varney's opinions and assessments were true. She was reassured that they were not. She was satisfied with Paviovic's explanation because Pavlovic was a person with more expertise in this area, and the person who had the authority to carry through with his assessment. For Griffore, his opinions and assessments were "qualitatively different" and obvi­ously carried more weight than those of Varney, a mere fellow employee. For these reasons, we are of the view that Varney's improper conduct did not in fact inhibit Griffore, and would not inhibit any other reasonable employee of ordinary convictions from exercising rights under the Act (see also Canadian Electric Box and Stampings Ltd., supra, The Kendall Company (Canada) Ltd., Green Giant of Canada Limited, supra, Crenmar Services Ltd., supra).

35. Next we turn to the allegation that Varney had improperly and in a misleading manner referred to the applicant's "two-tier" initiation fee structure. It was submitted that Varney's con­duct in this particular regard cast sufficient doubt on the membership evidence filed to cause the Board to dismiss the application or in the alternative order that a representation vote be con­ducted.

36. The only witness called to support this allegation was Mr. Brad Falconer ("Falconer"). He was called by the objecting employees. At the time of his testimony~ Falconer was no longer an employer at Venture having been discharged in October 1988. Falconer testified that he was approached several times by Varney and asked to join the union. He recalled that Varney spoke to him three times about the cost of joining the union. Two of those occasions where essentially pri­vate conversations in which Varney asked Falconer "... if you want to pay a dollar and sign a union card or would you rather pay forty-five dollars or more down the road." From this statement, Fal­coner understood that Varney was trying to save his fellow employees' money by encouraging them to pay a dollar rather than forty-five dollars "if and when the union got in." The other occa­sion when Falconer heard Varney discuss the cost of joining the union, Varney was addressing a group of twenty to twenty-five employees outside the employ entrance to the plant after the com­pletion of Falconer's shift. On that occasion, Varney was handing out some sheets, discussed unionization and at that time also said "we would have to pay a dollar and sign a card. If not, when the union got in it would cost forty-five or more dollars down the road." Falconer was present for approximately thirty minutes of that meeting but did not stay until it ended. He testified many questions were asked by employees during that meeting, but could not recall any questions about the union's fee structure. On none of these three occasions did Varney make any reference to a collective agreement, a contract or negotiations. Falconer further testified that he felt he always had a choice whether to join or not to join the union, but that he did not think he had any choice about paying initiation fees. Falconer was aware that during that period of time the CAW was conducting meetings, and that he could have gone to those meetings and asked questions if he wanted to. Falconer chose not to attend such meetings because he was not interested in joining the union.

37. Varney denied making any of the statements attributed to him by Falconer. His testi­mony was that there were a lot of rumours in the plant including a rumour that it would cost more to join the union later. Varney testified that he tried to dispel such rumours and told all employees "it was a dollar now and a dollar later". In his evidence in chief, he stated that he told employees "pay a dollar now and pay a dollar later and if anyone tells you, you'll pay thirty-five dollars or forty dollars or fifty dollars, don't believe them, it's not true". He testified he stated this because, prior to joining Venture, and while working for another employer which another union was attempting to organize, there were a lot of rumours and confusion about that union's initiation fees. He therefore asked Dan Flynn, the union organizer about the matter. As a result of this expe­rience, he wanted to ensure that employees were "not misinformed". Varney testified that he wanted to ensure employees "heard [about these matters] from me so that they don't hear what's untrue." He felt employees should not sign union cards because of the cost. He admitted that employees might be confused about the cost of joining the union but that was because "others were telling them things different from what I said." In cross-examination however, Varney was unaware that the CAW had a constitution, was not familiar with that constitution and was unable to say when or under what circumstances, initiation or membership fees were increased, or to what amount they would be increased if persons did not join during the organizing drive. At another point in his cross-examination however, he testified that he thought employees would be required to pay higher initiation fees if they were hired after a collective agreement had been ratified.

38. Upon balance and after having reviewed the testimony of these two witnesses, their firmness of memory, the consistency of their evidence, their demeanour and their ability to resist the influence of self-interest to modify or explain their testimony, we prefer the evidence of Fal­coner to that of Varney. We found that Varney's recollection of events and conversations was selective. He professed specific recall about matters which supported his position but became vague and uncertain in cross-examination when counsel pressed about matters which were, or could prove to be, harmful to the applicant's case. For example, we found it implausible that a per­son who professed to know much about the Employee Handbook and who had spent sometime reading the handbook, was unaware of the existence of, or familiar with the terms of the CAW constitution. This notwithstanding that Varney characterized himself as a "leader" of employees who was unafraid and willing to talk for and on behalf of others. It is particularly incredulous in light of Varney's own testimony that he encouraged people to ask him questions and told them that if he did not know the answer he would find out. We therefore conclude that Varney did in fact make the statements about which Falconer testified and propose to dispose of the matter on that basis.

39. From time to time, trade unions have made use of a two-tiered initiation fee system as an organizing device. This generally involves urging employees to join the union during the orga­nizing drive rather than at some later point at a higher initiation or membership fee. Nothing in the Labour Relations Act prohibits the union from reducing its initiation fee during an organizing drive and thereafter charging a higher fee as provided for by its constitution. A union thus commits no unfair labour practice merely by adopting such a system (Canadian Electric Box and Stampings Limited, [1964] OLRB Rep. Sept. 284 at 286; The Kendall Company (Canada) Limited, [1975] OLRB Rep. August 611). The cases indicate however, that the Board has insisted that the two-tiered system conform to certain requirements. In particular, the Board has stated that "the two tiered system must allow 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" (Haughton Graphics Limited, [1983] OLRB Rep. Sept. 1464 at 1467; see also Corporation of The Town of Dunnville, [1986] OLRB Rep. Jan. 85 at 91). The reason for this requirement is sim­ple. If the higher fee is made to apply before or immediately upon certification of the trade union, there is cause for the Board to doubt "whether employees have joined the union of their own free choice, or simply ... to avoid the risk of being required to pay the full amount of the initiation fee if the union is successful." Thus in Haughton Graphics, supra the Board after reference to Alex Henry, [1977] OLRB Rep. May 288, stated at page 1466:

40. The basis of the Board's concern is set out in plain terms in an earlier portion of the deci­sion:

41. 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 1(1)(1) and 103(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 the 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 practice of the present applicant, in fact, is entirely in conformity with the Board's requirements. The issue which arises here, however, is the manner in which the applicant has communicated its practice to the employees of the respondent.

(See also Trim Trends Canada Limited, [1986] OLRB Rep. Sept. 1312 at 1313 and Corporation of the Town of Dunnville, supra, at page 91).

40. Even if the union's practice conforms with the Board's requirements as stated above, the use of the two-tiered system may still be a distorting factor in assessing employees' true wishes if the union by its conduct leaves employees with the impression that its practice is other than it really is. The issue before us therefore is the manner in which the union's practice has been com­municated to the employees. Did the practice employed in this instance mislead "the reasonable employee" so that we ought to refuse to rely on all or part of the membership evidence (see Leon's Furniture Limited, [19821 OLRB Rep. March 404 at 407), or order the taking of a representation vote. In this regard, as is the case when the Board is faced with other improper conduct during the course of an organizing campaign, the Board's jurisprudence distinguishes between statements made by full-time union organizers and statements made by rank and file employees.

41. In Alex Henry & Son Limited, supra, a statement was made by a union organizer that the employees could join for two dollars now but that it would cost fifty dollars later. The Board noted that this would only be so if (a) the union was later successful in negotiating a union shop contract with the employer and (b) the union's constitution and by-laws provided for a higher post-certification initiation fees which the union would then be unable or unwilling to waive. The Board held that the union official's failure to make these clarifications was "latently, if not patently mis­leading", and amounted to "tacit misrepresentation on the part of the union representative". (See page 290). While the statement itself did not amount to "intimidation or coercion" within the meaning of what is now section 70 of the Act, the fact that it was made by a union official could lead a reasonable employee to join the union in the belief "that upon the union being certified he would have no alternative but to pay the higher fee if he wanted to keep his job". (See page 290). A vote was directed in view of the doubt raised with respect of the membership evidence. In Leon's Furniture Limited, supra, the Board elaborated on the Alex Henry principle as follows:

42. 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.

43. The Board went on to note however that a union official's failure to make complete dis­closure will not always cause the Board to doubt the membership evidence. Thus, the Board stat­ed:

…..We are not willing to exercise our discretion and order a representation vote every time there is some confusion on the nature of union security, initiation fees and dues obligations. People who are asked to join the union are expected to be able to sort out most of the confusion by ask­ing questions before they act. If they do not, this Board is reluctant to treat them any differently than they are treated when acting in a broader commercial context." (See Leons Furniture Limited, supra at page 413).

43. Where a union official attempted "to actively use the [initiation fee] differential as a sale's tactic and to leave the impression that employees would be required to pay the higher amount if they did not join the applicant during its organizing campaign", the Board disregarded the membership cards collected by that union official. (See Trim Trends Canada Limited, supra. On the other hand, where a union official had neglected to clarify what was meant by "later" after advising employees that they may as well pay a dollar now, because they would have to pay ten dollars later, the Board did not disregard the membership evidence collected by the union official because it found that there was no intention to mislead employees or to "use a two-tiered initiation fee as an organizing tool". The union official only made the statement in response to a question raised by two employees about the cost of later joining the union, and had not on his own initiative raised the matter of the two-tiered system.

44. In the facts and circumstances before us, the reference to a two-tiered fee system was made by a rank and file employee while soliciting membership cards. The test for determining whether the membership evidence is unreliable as a result of this is to determine whether the actions of the collector were "such as would unduly influence a reasonable employee" (see Green Giant of Canada Limited, supra, at 379; see also Leons Furniture Limited, supra at page 407 and Thames Steel Construction Ltd., [1980] OLRB Rep. April 545 at 553. It is in the context of this test that the identity of the persons making references to the two-tiered fee system is important for the "reasonable" employee may not accept as authoritative, and therefore may not be influenced by a fellow employee's representation, although the same "reasonable" employee might be influenced if the statement were to be made by a union official.

45. In Crenmar Services Limited, supra, the Board distinguished the position of the union official from that of the rank of file employee as follows:

Unlike the situation with a union official a rank-and-file employee is not in a position to seek to achieve the consequences of any statements he may make during a union organizing campaign. Further, employees upon hearing any statements made by rank-and-file employees concerning what a union might do in the future can always check out the accuracy of those statements with a responsible union official before signing a membership application. Having regard to these considerations, the Board is generally less willing to infer that a reasonable employee is likely to be properly [sic: improperly?] influenced into signing a membership card on the basis of state­ments made by a rank and file employee than it is with respect to the statements made by a union official.

(at 52)

46, In Canadian Electric Box and Stampings Limited, supra, employees who were soliciting union membership on behalf of the applicant told other employees that if they did not join the union and pay a $1.00 initiation fee it would cost them between $25.00 and $75.00 after certifica­tion. In that case the Board wrote at p. 407:

…..If a union can do this [i.e. reduce its initiation fee for an organizing drivel then the suggestion that it will do so cannot of itself be an unfair labour practice especially where the suggestion is made by persons who are not officers or representatives of the union. In any event, such sugges­tions could not be construed as threats since the persons making them were known to have no power to enforce them. In this case, the Director of Organization of the applicant union stated at a union meeting that the initiation fee would not be increased after certification.

The conduct of the employee members of the applicant against whom the above allegations were made in this case is not the type of conduct which in our opinion, could be classified as intimidation or coercion of the type found in the Milnet Mines Limited Case, Canadian Labour Law Reporter, Transfer Binder '49-'54, ¶17,063, Canadian Fabricated Products Limited Case, Canadian Labour Law Reporter, Transfer Binder '49-'54, ¶17,090, in which cases threats were made which were of a type which could reasonably be carried out and would have adversely influenced the average employee.

(See also Green Giant of Canada Limited, supra; The Kendall Company (Canada); supra, Hancock Sand & Gravel Limited; [1978] OLRB Rep. Oct. 928; Bond Structural Steel (1965) Ltd., [1979] OLRB Rep. Dec. 1137; Thames Steel Construction Ltd., supra; Corporation of the Town of Dunnville, supra).

47. In the circumstances of this case, we are of the view that neither Falconer nor any other "reasonable" employee would be influenced by Varney's statements. Varney was a fellow employee and, notwithstanding his role in the organizing campaign, could not be perceived to have any special status with the union. He was not a person who would be perceived as being able to achieve the consequences which the Board has found are implicit in the link between higher initia­tion fees and job security where the two-tiered fee structure is referred to by a union official. Var­ney was absent from the working environment at the plant for a significant period of time during the crucial week preceding the filing of the application. He was not the sole collector. Having observed Varney during his own testimony, and after consideration of the description or characterization of Varney from the other employee witnesses who testified (i.e. "excitable" and "loud"), we have concluded that the reasonable employee would perceive this as no more than a partisan "pitch". The evidence falls short of establishing that Varney actively and intentionally used the two-tiered fee structure as an organizing tool. Nor does it establish that it was used as any express or implicit threat to job security. Although there is no evidence to suggest that Varney attempted to explain or clarify what he meant by "down the road", neither does the evidence disclose that the statements were used as a sales tactic to leave the impression that employees would have to pay the higher fee if they chose not to join the union during the organizing campaign, or that failure to do so would result in the dismissal of employment if higher fees were not paid at a later time. Falconer himself felt that he always had the choice as to whether he would join the union, and merely acknowledged that he knew that if he joined the union he would be required to pay initiation fees.

48. From the totality of the evidence it is clear that during the organizing campaign there was a lot of discussion about the union amongst the employees. There were also several written communications from the company to the employees regarding unionization. Some of the letters sent by the company to its employees also raised the issue of membership fees and dues. For exam­ple in a question and answer format letter sent to employees, the employer writes:

Question: If the union comes in to negotiate, what would it ask for?

Answer: The union would ask for compulsory union membership so that all of you would have to join the union and pay dues, initiation fees, perhaps assessments, fines and other charges... or be fired.

A similar comment was made in a letter sent by the employer to the employees on February 4, 1988 where the employer states "in return for a mere promise to represent your interest, it will demand that you be required to join the union and pay initiation fees and union dues -- or be fired." In other letters sent to employees the company urges employees to alternatively notify man­agement "If anyone causes you any trouble at work or in your home, or threatens you or puts you under pressure to join the union", or urges employees that "Further, since you will be legally bound by the Union's Constitution and Local Union By-Laws by signing this card, I would suggest that you ask the paid union organizers for a copy of these documents and read them before you sign.”

49. The "reasonable" employee faced with these events and surrounding circumstances can seek to clarify any misunderstandings or misconceptions he or she may have. Falconer acknowl­edged that if he had so desired, he could have attended meetings of the employees called by the union. He could also have spoken to those union officials who handed out leaflets outside the plant. The company itself proposed that course of action. For that matter, he could simply have called the toll free telephone number displayed on that leaflet. Had he done any of these things and asked questions he might have ascertained if and when, and under what circumstances, he would be required to pay the higher initiation fees. If Varney's statements had caused any confu­sion or misunderstanding in Falconer's mind, or the mind of any other reasonable employee, the employees had full opportunity to seek clarification. As the Board noted in Hancock Sand & Gravel Limited, supra, at paragraph 15:

50. The Board considers that it would be unrealistic to expect the same standard from the rank­and-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.

For these reasons we concluded that in these circumstances, the Board should not discount the membership evidence collected by Varney or order a representation vote because there is some doubt about the true wishes of the employees who signed membership cards.

50, Finally, we turn to the allegation that in an "Information Bulletin" dated March 31, 1988 prepared by the applicant and issued to employees in the bargaining unit, the applicant stated:

The collective bargaining will add to what is presently in effect, because by law the company cannot cut your wages and/or benefits once the union has applied for certification.

Counsel submitted that this statement was misleading because it conveyed the false impression that certification creates a permanent freeze against downward changes in terms and conditions of employment. It was argued that the cumulative effect of this "misrepresentation" combined also with the intimidation and "misrepresentation" in respect of the two-tiered fee structure was suffi­cient to "taint" the membership evidence filed.

51. In our view, the statements made in this communication sent by the applicant is inaccu­rate. It does not however amount to misrepresentation sufficient to cast doubt upon the voluntari­ness of the membership evidence submitted. It amounts to no more than partisan salesmanship. It is inaccurate to the same extent as certain statements contained in the various letters which the employer sent to the employees such as:

Recently, paid-union organizers have been handing out "information" and asking Venture's employees to sign membership cards. While it is their legal right to convince or deceive you into joining a union, I ask that you consider that decision with great care and caution.

[Emphasis added].

In another communication the employer writes:

Unions try very hard to get cards signed by employees. They have used these cards in many cases to force employees into the union and to force companies to bargain with them, even after they have lost an Ontario Labour Relations Board election.

Similarly, the references to union demands for a closed shop provision in the communications to which we have already referred, are not entirely accurate in view of the fact that it is quite possible for the applicant to merely require the payment of dues from employees in the bargaining unit without requiring membership in the union.

52. In our view, these various statements are part of the electioneering which often occurs during an organizing campaign. The Board does not police the organizing campaign, and does not consider the truth or falsity of campaign literature and speeches by or on behalf of either side unless, the ability of the employees to evaluate such campaign material is impaired because of coercion, intimidation, threats, promises or undue influence or misrepresentation or the Board has doubt as to whether the membership evidence is a voluntary expression of the wishes of the employees. The evidence is sufficient for this Board to find that employees who signed membership evidence were not improperly influenced in deciding for themselves whether or not they wished to join the applicant. This is not a fundamental misrepresentation which would cause us to doubt the voluntariness of the membership evidence filed.

53. For all of these reasons we found that the membership evidence submitted in support of this application was sufficient and therefore certified the applicant union.