National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Tridon Limited, 1989 CanLII 3116

[1989] OLRB Rep. March 295

2419-88-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Tridon Limited, Respondent v. Tridon Employees' Union, Intervener

BEFORE: Patricia Hughes, Vice-Chair, and Board Members R. M. Sloan and C. McDonald.

APPEARANCES: John Moszynski and Clare Meneghini for the applicant; Cohn Morley and Dave Albinson for the respondent; Michael Horan and Vi Harras-Persinal for the intervener.

DECISION OF THE BOARD; March 9, 1989

1. By decision dated February 3, 1989, a partially differently constituted panel of the Board ("the first panel") directed the taking of a pre-hearing representation vote in this applica­tion for certification. Because of an allegation raised by the intervener, the Tridon Employees' Union ("the TEU"), with respect to the Form 9 filed by the applicant, the National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) ("the CAW"), the first panel also directed that the ballot box be sealed. The vote was scheduled for February 14, 1989.

2. In a letter dated February 13, 1989, the TEU withdrew its allegation about the Form 9. The first panel subsequently endorsed the file directing that the vote be counted.

3. On the day of the vote, the CAW indicated that it intended to file allegations about material which had been distributed by the TEU during the campaign. The Returning Officer therefore sealed the ballot box and directed that the CAW file its allegations within forty-eight hours. The CAW filed allegations on February 16, 1989. The representations relating to the cam­paign were scheduled before this panel of the Board. The CAW also filed a subsequent letter on February 22, 1989, which was the subject of dispute before this panel of the Board.

4. By letter dated February 17, 1989, counsel for the TEU requested that the vote be counted immediately. That request was not renewed before this panel and the ballot box has remained sealed.

5. Counsel for the TEU also advised the Board by letter dated February 21, 1989, that the TEU would be raising its Form 9 allegation before the panel hearing the representations of the CAW. Counsel did in fact raise that matter before us. He also objected to the panel's entertaining the CAW's February 22nd letter on the basis that it was untimely, after being sent after the forty-eight hour deadline imposed by the Officer.

6. During consideration of the timeliness issue, counsel for the CAW stated that the CAW was not raising any new allegations in its February 22nd letter. In particular, it was raising no alle­gation about employer involvement. The concern of counsel for Tridon and of counsel for the TEU that allegations additional to those raised in the February 16th letter had been prompted by the following paragraphs in the February 22nd letter:

7. Leaflet captioned, "Vital Information Given to T.E.U.", signed "Your Union" and undated.

This leaflet was posted on the Tridon Employees Union's bulletin board at the Burlington plant on February 13, 1980. Copies of the leaflet were found on the lunchroom tables on the same date. Finally, copies of the leaflet were handed out to employees leaving and entering the plant on February 13, 1989. The same leaflet was found on the lunchroom tables at the Oakville plant and was distributed to employees at or about 3:00 p.m. on the afternoon of February 13, 1989 by a representative of the Tridon Employees Union, Grace Proulx.

9. Leaflet captioned, "To All Tridon employees Union Members", with the subheading, "February 14, 1989 - Again It Will Be A Sad Day for CAW".

This leaflet was signed by the Tridon Employees Union and undated. The leaflet was distributed in the same manner and at the same time as the literature referred to in paragraph 6 above.

11. Cartoon captioned, "Training Manual for Union Rating ... we need the per capita bad - CAW For Disaster". ("the cartoon")

This material was distributed without signature and was not dated. The cartoon material was found on the Tridon Employees Union's bulletin boards at both the Oakville and Burlington locations. The material was also found on the lunchroom tables in the cafeterias at both the Oakville and Burlington locations in the afternoon of February 13, 1980. Copies of the cartoon leaflet were also found in the washrooms at the Burlington plant.

7. Counsel for the TEU acknowledged that the three documents referred to above were distributed to the employees more or less at the times and in the places alleged, that is, that the materials were distributed to employees, at the "11th hour" in the workplace.

8. Having heard the submissions of the TEU and the CAW on these two preliminary mat­ters (the respondent, Tridon Limited ("Tridon") made no submissions on the matter of the Form 9), we recessed and reconvened to deliver the following oral rulings:

The Form 9 allegations were withdrawn by the intervener, for reasons which are of no concern to the Board. On the basis of the material in front of it, the panel directing the vote was satisfied there it had no reason to seal the ballot box after the intervener's allegations were withdrawn. The reason the box was subsequently sealed had nothing to do with the Form 9, but with the allegations raised by the applicant. We are not prepared to entertain the Form 9 allegations raised and withdrawn by the intervener.

The February 22, 1989 letter from the applicant raises no new allegations but merely particularizes further the allegations in the February 16, 1989 letter which was filed within the time directed by the Officer. The intention of the applicant to particularize further the allegations already made by the appli­cant on February 16th is clear from the first line of the February 22nd letter. Both letters were filed by the date fixed by Form 72, that is, February 22, 1989.

9. The first line of the February 22nd letter from counsel for the CAW (not counsel appearing at the hearing) states: "As indicated in my letter of February 16, 1989, I am forwarding more detailed particulars of the representations outlined in our request to the Board dated Febru­ary 16, 1989". That statement actually refers to two February 16th letters, one in which counsel set out in basic form the allegations that were made and a second one in which counsel indicated she could not make more detailed representations by the time set by the Officer but that these would be forthcoming by the date fixed in Form 72. To the extent that we have found the February 22nd letter to be particulars of the February 16th letter, we do not have to deal with any conflict arising from the direction of the Officer to file representations within forty-eight hours and the date fixed by Form 72. We can see, however, one possible way in which such conflict could be resolved. The CAW sought to have the ballot box sealed; had it filed no allegations within forty-eight hours, pre­sumably the box would have been opened and the vote counted.

10. We note with respect to the Form 9 that the panel directing the vote, initially directing that the ballot box be sealed and subsequently directing that the box be opened, had before it the allegation with respect to the Form 9 which was withdrawn. Counsel for the TEU accepted that that panel had made a prima facie decision about the adequacy of the Form 9 when it ordered the box opened but wished to raise the TEU's specific allegation again.

11. None of the parties called any oral evidence with respect to the CAW's allegations. The parties agreed to the CAW's providing us with an exhibit book containing material which had been distributed over a period from October or November 1988 to February 1989, from which one docu­ment objected to by Tridon and two by the TEU had been removed.

12. The CAW's case falls into two branches: the first is that the material is misleading because it is false and could not be responded to by the CAW because it was distributed at the 11th hour; the second is that certain of the material is so offensive that it demands a message from the Board in the form of a second representation vote.

13. We are not persuaded by either of these arguments to set aside the vote that has been held and to direct a second vote.

14. The practice of the Board with respect to its reluctance to interfere in union election campaigns is well-known. The Board in McMaster University, [1979] OLRB Rep. July 685, phrased the test at paragraph 11 as follows:

15. ... Despite its general position [that it should not monitor campaigns preceding a representa­tion vote]~ the Board does not close its eyes entirely to the conduct of the campaign if, in its judgment the campaign has been so waged by one party to preclude the other party from a meaningful opportunity of reply and thus to impair the employees' freedom of choice and thereby call into question the weight to be accorded to the results. It is not every unanswerable claim which will cause the Board to intervene. However, in those instances in which a claim is made, which is in fact false and which relates to a significant factor which would be involved in the voter's final evaluation of the issue on which he is voting, and which the other party has not yet had adequate opportunity to dispute, the Board will act by ordering a new representation vote. See Joseph Gould and Sons Limited 52 CLLC ¶17,039. [emphasis added]

In Joseph Gould, supra, the incumbent had mailed a letter to the employees in which it cautioned the employees, among other related comments, not to "hand over our Union to a group of anti-Unionists, anti-Jews, Jew-haters, anti-semites and such like". The Board ordered a new represen­tation vote because "the conduct complained of [including the timing of the mailing 'at the last possible moment' as well as the content of the letter] is almost certain to have impaired the employees' freedom of choice".

15. Greater appreciation of the notion of impairment of the employees' freedom of choice can be found in cases such as Stauffer-Dobbie Manufacturing Co. Ltd. 59 CLLC ¶18,147 and Crock & Block Restaurant, [1984] OLRB Rep. Jan. 19. The first speaks of employees "evaluating [the material] at its true worth"; the second of material that "[overpowers] the critical faculties of employee voters". In Cara Operations Limited, [1985] OLRB Rep. Feb. 222, a termination case, the Board said it had to decide whether "the letter in [that] case has deprived the employees of the ability to exercise their 'critical faculties' in assessing whether the respondent should continue to represent them in collective bargaining".

16. The CAW says that the material distributed to employees (that is, both leaflets and the cartoon) contains false statements and that the onus is on the TEU to show the statements are true. We disagree. The CAW alleges that the material is such that it warrants a second vote and that one reason for this is that the statements are false. The onus is on the CAW. The CAW, how­ever, called no evidence. We are not in a position to find the material true or false and the CAW fails on this point alone. Further, however, we cannot infer that a reasonable employee would see this material as anything but part of the war of paper which went on between the TEU and the CAW for a period of about three months. In particular, the material suggests the CAW wants to represent Tridon employees only to get their dues and that the CAW can do nothing more than the existing representative, the TEU. These are common themes in organizing campaigns and they were common throughout this campaign - they appeared in the first circular from the TEU in the exhibit book.

17. The cartoon is impugned not only for false allegations but also for the stereotyped cari­catures it displays. Again, we believe reasonable employees would see the cartoon as another piece of propaganda, albeit somewhat more graphic. We are not prepared to infer, as requested by coun­sel for the CAW, that the cartoon would appeal to the prejudices of employees, diverting their concerns from the main issues and prompting them to vote against the CAW. The CAW fails on this point as well.

18. We have attached a copy of the cartoon. Counsel for the CAW stressed that figures A and G are an appeal to prejudices, that they communicate to employees that a vote for the CAW would be a vote for Jews and blacks. We see the cartoons in another light. To us, they appear to be a rather crude effort to convey certain characteristics through the use of stereotypes. Our refusal to accept the CAW's invitation to show our lack of regard for such material by directing a second vote should not be taken to mean we condone the material. On the contrary, as the Board said in Joseph Gould, supra, the use of discriminatory material, based on stereotyped and prejudicial atti­tudes, "represents the use of a tool which thinking people in a free society must abhor and repudi­ate". Unlike the Board in that case, however, we have no reason to believe the material before us would be successful in impairing the employees' freedom to vote as they considered appropriate.

19. There being no merit in the CAW's allegations, we direct that the ballot box be opened and the vote counted.

20. There was one other issue before us: the determination of the appropriate bargaining unit. The TEU and the CAW agree that the unit should be as described in the collective agreement between Tridon and the TEU; Tridon proposes a different unit. (See the Board's February 3, 1989 decision.) Counsel for Tridon advised the Board that he could not add anything further on the issue than the submissions contained in his letter to the Board dated January 27, 1989. Neither the CAW nor the TEU made submissions on that issue. We do not need to determine the appropriate bargaining unit unless the CAW is successful in the vote. That matter will therefore be dealt with after the vote has been counted, should it be necessary to do so, on the basis of written material now before us.

TRAINING MANUAL FOR

UNION RAIDING ……

WE NEED THE PER DCAPITA…..BAD.