Ontario Labour Relations Board
[1990] OLRB Rep. August 870
Parties
2933-89-R; 3192-89-U Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91, Applicant v. National News Company Limited, Respondent v. Group of Employees, Objectors; Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91, Complainant v. National News Company Limited, Respondent
Panel
BEFORE: Nimal V. Dissanayake, Vice-Chair, and Board Members R. W. Pirrie and K. Davies.
Appearances
APPEARANCES: Linda Huebscher, John Raudoy, Manon Cayer and Michael Quigg for the applicant/complainant; Donald B. Jarvis and Phil Patenaude for the respondent; Anne McAllister for the objectors.
DECISION OF THE BOARD; August 16, 1990
File No. 2933-89-R is an application for certification. File No. 3192-89-U is a complaint filed by the applicant union under section 89, alleging that the employer has contravened sections 3, 64, 66 and 70 of the Act.
Prior to these matters coming before the Board for a formal hearing, the parties met with Board Officer William Jackson and resolved a number of issues relating to the application for certification. Accordingly, the name of the respondent employer is amended to read: "National News Company Limited".
The parties also agreed upon the following bargaining unit description:
all employees of the respondent in the Regional Municipality of Ottawa Carleton, save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than (24) twenty-four hours per week and students employed during the school vacation period.
The Officer disclosed to the parties "the count", that is the number of employees in the agreed upon bargaining unit on the application date and the number of these employees who were members of the applicant on the terminal date. The applicant's level of membership support was such that it would normally have been entitled to certification under section 7(2) of the Act.
However, also filed prior to the terminal date was a statement of objection to certification (“a petition"). This petition contained a sufficient overlap of signatures as would normally cause the Board to direct a representation vote, if it was satisfied of its voluntariness. In addition, the respondent also filed particulars of allegations that the applicant had engaged in conduct in contravention of section 70 of the Act in the course of its organizing drive and claimed that as a result the membership evidence filed in support of the application was not reliable. A hearing was convened in Ottawa to deal with the issues of the voluntariness of the petition, the allegations with respect to the membership evidence and the unfair labour practice complaint against the respondent. The two files were consolidated.
At the commencement of the hearing on June 11, 1990, Ms. Anne McAllister, counsel for the objecting employees, advised the Board that she had instructions from her clients to withdraw the petition. The Board consented to the request to withdraw the petition.
That left for determination by the Board, the allegations with respect to the membership evidence and the unfair labour practice complaint. The Board ruled that it would first deal with the former issue before hearing evidence and submissions on the unfair labour practice complaint in File No. 3192-89-U.
The Board heard evidence and submissions with regard to the respondent's allegation that the membership evidence filed in support of the application for certification was obtained in contravention of section 70 and hence unreliable as an expression of the true wishes of the employees. The Board orally-ruled that the respondent had not established a contravention of section 70 as would cause the Board to doubt the reliability of the membership evidence and that accordingly the applicant was entitled to certification without the need for a representation vote. Following that ruling, the applicant union requested leave of the Board to withdraw its unfair labour practice complaint in File No. 3192-89-U and the Board granted the request.
The Board now sets out its reasons for its ruling relating to the membership evidence. The charges centre around two alleged incidents involving Mr. Peter Cray, a driver employed with the respondent for some 30 years. Mr. Cray and Mr. Wilf Gauthier, another driver, were good friends and had known each other ever since Gauthier started working for the respondent some ten years ago. They frequently met for coffee at a donut shop located close to the workplace. According to Cray on Friday, February 9, 1990, which was an off day for him, he met Gauthier at the donut shop. Gauthier told him "you owe me $5.00". When Cray inquired why, Gauthier told him it was for the union. Cray informed Gauthier that he did not want a union to come in. According to Cray, Gauthier then said words to the effect "the union is coming in. If you don't join you won't be able to work for the company because its going to be a closed shop". Cray testified that during this conversation Gauthier had in his hand what he believed to be a "union card". Cray testified that he was worried because he had worked for the respondent a long time. When the respondent's counsel asked if he felt intimidated by what Gauthier told him, Cray responded "just a little bit".
On the following Monday, Cray approached his immediate supervisor, Mr. John Gourgan. Cray testified that Gourgan was "kind of a friend" and he had known him for over twenty years. He related to Gourgan what Gauthier had told him and asked if it was true that he would lose his job if he did not join the union. Gourgan assured Cray that what Gauthier told him was untrue and that only the company management could cause Cray to lose his job.
According to Cray a second incident occurred on Tuesday, February 13, 1990. Cray was loading his truck at the start of his shift and Gauthier was helping him. Cray testified that Gauthier told him "if you don't join the union now by paying $5.00, it will cost you $125.00 to join later". Later that morning, Cray again related to Gourgan what Gauthier had told him and asked if it was true. Gourgan informed him that he did not know what the rules relating to union dues were.
Cray's evidence is that there were no other employees present when Gauthier made either of the alleged statements, which he took to be threats. Since Gauthier was not called to testify, Cray's evidence remains uncontradicted. Furthermore, Mr. Gourgan confirmed that Cray talked to him about the statements as claimed. Thus the Board finds that Gauthier did make the alleged statements to Cray. The issue is, what effect, if any, that has on the reliability of the membership evidence filed in support of the application.
The applicant's evidence is that Mr. Michael Quigg was the driving force behind the employees organizing attempt. Ouigg consulted with Mr. John Raudoy, an organizer for the union. Both Quigg and Raudoy testified. They testified that the first concrete step towards unionization was when the employees were invited to attend a union meeting on February 21, 1990 at a donut shop. At the meeting, Raudoy addressed those in attendance and described what the unionization process involved, and answered questions from the employees. He testified that he mentioned that the dues were set at $5.00 because the union intended to file simultaneous applications with the Ontario Labour Relations Board and the Canada Labour Board because there was some uncertainty as to the appropriate jurisdiction. He told the employees that once certified, he would encourage the union to negotiate a union shop and that the union's usual initiation fee was $125.00. He specifically stated that the initiation fee is waived during the organization campaign and that even if a union shop clause is negotiated, those employees who had not already done so would have the opportunity to join the union for $5.00 during a period of 30 days following the execution of the collective agreement. During this meeting Raudoy had a stack of union cards on the table. Employees had access to these cards and a number of them signed them. According to the applicant's witnesses no union cards were in circulation until Mr. Raudoy brought them to this meeting on February 21, 1990.
The evidence is clear that Cray never signed a union card. While he approached his supervisor, he did not ask either Mr. Quigg or Mr. Raudoy, who he had occasion to meet, to verify the statements of Gauthier. Nevertheless, Quigg heard by way of rumour that Cray was threatened by someone. Quigg sought out Cray and inquired who had made the alleged threats and Cray told him it was Gauthier. Cray referred to Gauthier's remark about having to pay $125.00 to join the union later. Quigg explained that it was not a threat, that even after certification he would be able to join the union for $5.00. The next day Ouigg spoke to Gauthier and asked him to "straighten things out" with Cray. Sometime later Gauthier reported to him that he had spoken to Cray and that “there was no problem now".
The applicant's evidence is that only Quigg, Raudoy and another employee, Mr. Randy Cayer were issued union cards and requested to sign up members. Quigg and Raudoy categorically denied that Gauthier was ~ collector", or had any role to play on behalf of the union. Mr. Raudoy candidly agreed that if one employee had "signed up" a fellow-employee, he would have readily accepted the membership application. However, it is the evidence of both Quigg and Raudoy that they received no signed up membership applications from anyone other than themselves and Randy Cayer. They specifically deny that they received any memberships from Gauthier.
The Board has concluded that the foregoing facts do not cast a doubt on the reliability of the membership evidence filed as indicating the true and voluntary wishes of the employees who signed. While counsel cited a number of prior Board decisions where a representation vote had been directed as a result of similar statements being made, in all of those cases the statement was made by a collector on behalf of the union. The Board has recognized that peer pressure during an organizing drive is not relevant to the reliability of membership evidence (see, Baltimore Aircoil Inter American Corp., [1982] OLRB Rep. Oct. 1387). Similarly, the Board has held that it will not direct a representation vote where a statement is made about union dues, such as the one made here by Mr. Gauthier, where it is made by a rank and file employee (see, Crenmar Services Ltd., [1987] OLRB Rep. Jan. 48).
Counsel for the respondent urged the Board to infer from the union's failure to call Mr. Gauthier to testify that he indeed was "a collector" on behalf of the union. However, the Board cannot do so in light of the evidence before it. Ouigg and Raudoy both testified that in addition to themselves, the only other person who "collected" memberships on behalf of the union was Randy Cayer. The Board has reviewed the membership applications filed. The only collectors on the cards are Ouigg, Raudoy and Cayer. Counsel suggested that the union might have weeded out any cards collected by Mr. Gauthier knowing that it would have problems if Mr. Gauthier is linked with the union as a collector. There is no evidence to reach such a conclusion even by inference. On the contrary, the evidence suggests that Mr. Gauthier could not have been "a collector" at the time he made the statements to Mr. Cray. An examination of the membership evidence reveals that the earliest date on which a card was signed was February 21, 1990, - the day of the meeting at the donut shop. This appears to corroborate the union's evidence that the meeting on February 21 was the first concrete step taken towards unionization and that no membership applications were available until Mr. Raudoy brought them to the meeting on February 21. Mr. Cray testified that he had absolutely no experience with trade unions. We have every reason to believe that Cray was mistaken when he believed that what Gauthier carried in his hand on February 9, 1990 was "a union card". If membership applications were available for solicitation as early as February 9th, it is highly unlikely that the main organizers such as Ouigg and Raudoy would not have signed up at least a few employees well before February 21st. All of the evidence points to the inescapable conclusion that solicitation of employees on behalf of the union did not commence until the meeting held on February 21st.
While Gauthier did make intimidatory statements to Cray, we are satisfied this was nothing more than a case of an employee trying to influence his good friend to join the union. In reaching this conclusion, we note that the respondent had the onus of satisfying the Board that the membership evidence was not reliable. Gauthier was an employee with the respondent. If the respondent wished to contradict the union's evidence that Gauthier was not a collector and that he did not submit any cards to the union, it was open for it to call Gauthier. Having failed to do so, the respondent cannot expect this Board to make an adverse inference from the union's failure to call Gauthier to contradict the evidence already before it.
In all of the circumstances, the statements made by Gauthier can only be viewed as ones made by one employee to another and can have no bearing on the reliability of the membership evidence filed.
Having regard to the foregoing finding and the withdrawal of the petition, the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit described in paragraph 3 above, at the time the application was made, were members of the applicant on March 9, 1990, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Accordingly, a certificate will issue to the applicant.
As already noted the complaint in File No. 3192-89-U is withdrawn.