United Steelworkers of America v. Drillex International of Canada Inc., 1991 CanLII 6111

[1991] OLRB Rep. February 169

0460-90-R; 0590-90-U United Steelworkers of America, Applicant v. Drillex Inter­national of Canada Inc., Respondent v. Ron Martin, Group of Employees; United Steelworkers of America, Complainant v. Drillex International of Canada Inc., Respondent

BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Rundle and C. McDonald.

APPEARANCES: Paula Turtle and Roger Aubut for the applicant/complainant; B. Pollock, Stuart Ducoffe, B. Lipic, E. Pividor and Vic Skot for the respondent; John Desotti, Ron Martin and Mark Woodliffe for the Group of Employees.

DECISION OF THE BOARD: February 12, 1991

1. File No. 0460-90-R is an application for certification. File No. 0590-90-U is a section 89 complaint alleging a violation of sections 64, 66 and 70 of the Labour Relations Act (the "Act").

2. Pursuant to the panel's decision of December 7, 1990, the applicant was certified to rep­resent a bargaining unit of employees of the respondent. The majority of the panel (with Ms. Run­dIe reserving her decision) was not satisfied that a petition document filed represented a voluntary expression of employees' wishes and as such did not cast doubt on the membership evidence filed by the applicant. This decision sets out our reasons for that conclusion and our determination in the section 89 complaint.

3. The approach the Board takes to its inquiry into the voluntariness of any statement of desire filed in opposition to an application for certification was described in Chatham Concrete Forming [1986] OLRB Rep. Apr. 426 (and the cases cited therein) as follows:

4. The system of certification prescribed in Ontario by the Labour Relations Act rests primarily upon an assessment of the union's membership support based upon an examination of its docu­mentary evidence of membership. Upon showing the requisite membership support, the union is "certified" or granted a licence to bargain on behalf of a group of employees - subject, of course, to their right to file a timely application terminating bargaining rights. The Board does not solicit viva voce opinion about the virtues of trade union representation (see Rule 73(2)), nor, in this jurisdiction, is a representation vote the primary vehicle for achieving the right to represent employees. That right depends upon the solicitation of a sufficient number of mem­bership cards authorizing the union to act as bargaining agent, and to protect employees from possible employer reprisals the anonymity of the union supporters is preserved. That is the way it has been for more than thirty years, ... Representation votes are a residual mechanism resorted to where the union cannot demonstrate a "clear majority" (i.e., more than fifty-five per cent) or where, in the Board's discretion, a representation vote should be held in the partic­ular circumstances of a case. One of those circumstances is a purported change of heart by employees who have previously signed union membership cards.

5. The Board must be satisfied, however, that when these union supporters sign the petition indicating an apparent change of heart, they are doing so voluntarily, and are not motivated by a perceived threat to their job security or a concern that their failure to sign would be communi­cated to their employer, or could result in reprisals. It must be clear that the circulation of the petition is free from the actual or perceived influence of management. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the petition document? While an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. And lest it be thought that the identification of union supporters and opponents is neu­tral information, one must remember that the Legislature does not regard it that way. Section 111 of the Act is designed to preserve the secrecy of the employees' choice. The Legislature has recognized the employees' concerns and sensitivities.

6. Frequently, as in the present case, anti-union petitions are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be perceived to be act­ing on its behalf. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign because of conduct which suggests that contin­ued support for the union will result in the loss of his job or other adverse employment conse­quences. In neither case can one regard his signing the petition as being truly voluntary -although, of course, the mere identity of interest between the employer and the objecting employees is obviously not sufficient in itself to link the petition with management in the minds of reasonable employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits. On the other hand, in the Board's experience there are enough instances where employers have committed unfair labour practices, or have sponsored or supported anti-union petitions that these employee fears cannot be discounted as being patently unreasonable. Again, that is why the Act preserves the secrecy of union membership.

7. It is for this reason that the Board undertakes the inquiry contemplated by Rule 73(5) of the Rules of Practice, in order to satisfy itself from the circumstances of the origination, prepara­tion, and circulation of the petition, that the document truly represents the voluntary wishes of those who signed it.

8. Also in Pigott Motors, 63 CLLC 16, 264 the Board explained:

In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improp­erly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reason­able assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in decid­ing whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its organization, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reason­ably suspect the involvement of management and hence be concerned as to whether or not man­agement might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)

5. We do not intend to review all of the evidence but provide a summary of our relevant findings. Mr. Ron Martin, a lathe operator employed by the respondent, testified in support of the petition. On May 24, 1990, in the early afternoon, the Form 6, Notice to Employees, was posted in the work place. Mr. Martin read the notice and testified that having spoken with some other employees he decided to start a petition. He and his wife drafted the petition that night at home. On the morning of May 25, 1990, Mr. Martin told his supervisor, Mr. Katsandris that he had per­sonal business to attend to which required an hour off. Mr. Katsandris did not inquire into the nature of that business. Mr. Martin punched out and went to pick up the petition from his wife who had typed it. Mr. Martin returned to Drillex, punched in and went back to work. At approxi­mately 11:55 a.m. Mr. Martin and Mr. Mark Woodliffe, another employee, began circulating the petition. They both punched out in order to show they were not being paid for their time while cir­culating the petition, but they did not disclose the fact that they had punched out to any of the employees they approached to sign the petition. Mr. Woodliffe became involved that morning when Mr. Martin asked him if he would act as a witness.

6. The two employees went first to the trailer (the "lunch room"). There were a number of employees there. Mr. Martin announced to the group that he had a petition, he read it out to the employees and then proceeded to obtain individual signatures by moving from table to table and passing it amongst the employees. We heard various evidence concerning the order in which Mr. Martin attended the tables. Regardless of that order it is clear that Ryan Lipic, the son of one of the owners of Drillex, and Freeman McDonald were in the lunch room at that time. Moreover it is the uncontradicted evidence of Mr. Longchamps that Mr. Chris Milligan, a foreman with the company, was also present at that time. There is no dispute that foremen are excluded from this bargaining unit. Anyone in the lunch room during this period would have been able to observe other employees signing or not signing the document as it was passed amongst them.

7. From the lunch room, Mr. Martin and Mr. Woodliffe moved to a picnic table located outside and in the vicinity of the entrance doors to the plant. Although there were minor discre­pancies in the evidence, essentially the two employees moved from the picnic table to the change room door, then into the change room where more signatures were obtained and then back to the lunch room. They then went back to the picnic table before returning to work at approximately 12:35 p.m.

8. At 1:30 p.m. both employees again punched out. Upon being asked why by Mr. Kat­sandris, Mr. Martin simply indicated that he had something to do. Mr. Katsandris did not chal­lenge Mr. Martin or inquire any further and allowed him to punch out. The two employees attended outside in order to wait for the arrival of the 2 p.m. shift.

9. Mr. Martin acknowledged that at one point while standing at the entrance door, Mr. Lovelace, a foreman, Ryan Lipic and a Mr. Collard were present at the picnic table. These individ­uals would be able to observe who signed and who did not sign the document. In addition, Mr. Martin saw Mr. Katsandris come and go during this period. Although he was not certain, Mr. Mar­tin also thought that Mr. Milligan might have been present at the picnic table. Although most of the employees had signed the petition by then, additional signatures were obtained during this period of time. Although Mr. Martin testified that no management individuals were present at any of the locations, it is clear that this was not the case even on his own evidence. Subsequently, Mr. Martin attended at the picnic table where at least Mr. Lovelace and Mr. Ryan Lipic were sitting. Mr. Martin had the petition with him and there is no indication that he attempted to hide that fact from the foreman present.

10. Having witnessed the signatures on the petition, Mr. Woodliffe's involvement ended. Mr. Martin kept the document with him and his wife forwarded it to the Board. There is no issue between the parties with respect to Mrs. Martin's involvement in forwarding the document.

11. Mr. Martin acknowledged that there was no need to "sell" the idea of signing the peti­tion to any of the employees. Rather, during the time they were stationed outside the entrance door, employees were approaching these two employees to sign the petition.

12. It is unusual for employees to punch out during a work day. Mr. Katsandris did not inquire of Mr. Martin the reasons for his request. Mr. Katsandris was aware that a petition was being circulated by Mr. Martin in the work place. Mr. Ferrier, Mr. Woodliffe's supervisor, also did not inquire of Mr. Woodliffe the reasons for his punching out. Both employees, in addition to punching out over lunch, also punched out early that day. The employees were not made aware that Mr. Martin and Mr. Woodliffe were on their own time. Nor in the circumstances do we believe it would have made a difference. A reasonable employee would understand that the docu­ment was being circulated on company premises and time and with the tacit~ if not active support

of management.

13. While the evidence of the actual circulation of the document in the presence of com­pany foremen led us to conclude that it did not represent a voluntary expression of employee wishes, other evidence with respect to the origination of the document provided context to our conclusion.

14. On May 24, 1990, prior to the posting of the Form 6, Notice to Employees, Mr. Free­man McDonald was seen and acknowledges having circulated a document variously referred to as a "survey" or "petition". The applicant initially challenged Mr. McDonald as an individual excluded from the bargaining unit by reason of his managerial functions. It later withdrew that challenge, however, it asserts that Mr. McDonald would be seen as more closely aligned to management. Regardless of Mr. McDonald's status under the Act, Mr. McDonald did circulate a document amongst the employees on May 24, 1990 for the purposes of obtaining an indication of their wishes with respect to union representation. He was told to stop circulating that document. It is unclear as to who precisely directed Mr. McDonald. The only reasonable conclusion is that it was a member of management following a meeting which occurred during the afternoon of May 24, 1990. That document made reference to the likelihood of continuing employment should the union be success­ful. We are satisfied that employees were aware that Mr. McDonald had circulated the document, its contents, and that he had been told to stop.

15. Mr. Martin subsequently spoke with Mr. McDonald on more than one occasion prior to commencing the circulation of his petition. He did not attempt to hide these conversations from other employees. He received information about who could and could not sign the petition as between shop leaders and foremen. It is not clear where Mr. McDonald obtained this information. Nor is it apparent that Mr. McDonald was familiar enough with the issues so as to be confident in providing it himself. It is more likely that the information was provided to him at the same time he was told to stop circulating his document.

16. Even Mr. Martin did not believe that it had been appropriate for Mr. McDonald to be circulating the document on May 24, 1990 for two reasons. Firstly, Mr. McDonald was doing it on company time. This supports our earlier conclusion in that Mr. Martin wasn't aware whether Mr. McDonald had punched out or not. He assumed that it was on company time because it was during company working hours. Secondly Mr. McDonald wears a white hat and is a shop leader. While the union withdrew its challenge to Mr. McDonald being on the list of employees, and it is there­fore agreed he is a member of the bargaining unit, it would appear that it is members of manage­ment, office staff, or guests who wear white hats in the plant and that employees in the bargaining unit would normally wear green hats.

17. On the evidence we were satisfied that an employee would reasonably suspect the involvement of management in the preparation and circulation of the petition and therefore we were not satisfied that the document represented a voluntary expression of employee wishes. We therefore certified the applicant.

II

18. With respect to the section 89 complaint it is the position of the trade union that Mr. Daniel Lapensée was terminated from employment in violation of sections 64, 66(a) and (c), and 70 of the Act. It is the position of the respondent that the termination was for just cause. There is no dispute as to the legal principles which apply in this case. The respondent employer must satisfy the Board on a balance of probabilities that its conduct in terminating Mr. Lapensée's employment was in no way motivated by any anti-union animus.

19. This requirement was summarized in The Barrie Examiner [1975] OLRB Rep. Oct. 745 at para. 17 as follows:

20. ...

In other words, the appearance of a legitimate reason for discharge does not exoner­ate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts . first, that the reasons given for the dis­charge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.

20. The exercise to be undertaken by the panel was described in Pop Shoppe (Toronto) Limited [1976] OLRB Rep June 299, at para. 5:

21. In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other "peculiarities". (See National Automatic Vending Co. Ltd. case 63 CLLC 16,278).

22. Daniel Lapensée's employment was terminated on May 10, 1990 by Robert Lipic, part owner of the respondent. That decision by Mr. Lipic came about following an incident involving Mr. Foster and Mr. Lapensée. Mr. Foster was then employed as systems co-ordinator. In that capacity, he had access to all computer records including payroll, customer lists, costings, etc. In early May, 1990, Mr. Foster had tendered his resignation in order to move to a position with another employer. He had known Mr. Lapensée as an employee of the respondent for the period of his employment there, some ten years. On May 9, 1990, Mr. Foster was at the soft drink machine on the respondent's premises when he was approached by Mr. Lapense in the presence of two other employees, Mr. Collard and Mr. Simoni. There was general conversation surrounding Mr. Foster's upcoming departure. With respect to the evidence of what then occurred at the soft drink machine, we prefer the evidence of Mr. Foster over that of Mr. Lapensée. Mr. Lapensée turned to Mr. Foster at a point and asked him if he could "get us some files". When Mr. Foster responded with an ironic "yeah right", Mr. Simoni referred to Mr. Lapensée as "you flicking dummy". Mr. Lapensée responded with words to the effect of what can they do, fire him, he has already quit. At this point Mr. Foster retrieved a soft drink from the machine, pleasantries were exchanged and he returned to his office.

23. Mr. Foster had a meeting pre-arranged with Mr. Lipic that day at 3 p.m. to discuss mat­ters surrounding his departure. At a point in the meeting Mr. Foster recounted this incident to Mr. Lipic. We are satisfied that Mr. Foster believed Mr. Lapens6e's request to be a serious one based on Mr. Lapensée's response to Mr. Simoni.

24. Upon learning of the incident from Mr. Foster, Mr. Lipic pulled Mr. Lapensée's employment record. In September, 1987, Mr. Lapensée was suspended for one day for wilful dam­age to a tool box. In June of 1988, he was suspended for two days and the letter of suspension con­firms that Mr. Lapensée has been counselled on a number of occasions with respect to his attitude and it also advises that if Mr. Lapensée causes any further problems he will be dismissed from employment. Mr. Lipic contacted legal counsel, forwarded the employment record to him and the following morning discussed with counsel whether to terminate Mr. Lapens6e's employment. It is the respondent's position that the decision was based on the incident with Mr. Foster coupled with Mr. Lapensée's work record.

25. On May 10, 1990, Mr. Lapensée was called into Mr. Lipic's office. Mr. Lapensée acknowledged that he had asked Mr. Foster to steal files but responded that he had only been jok­ing. Mr. Lipic had already made the decision to terminate Mr. Lapensée's employment and pro­ceeded to do so at that time. Mr. Lapens6e was escorted by Mr. Katsandris to his work station, then to his locker to gather his personal belongings and off the premises. The letter of termination indicates that the respondent's investigation confirms that Mr. Lapensée approached Mr. Foster "with a view to having him 'steal corporate files"'.

26. Mr. Lipic was aware that the applicant was conducting an organizing campaign as early as the beginning of February, 1990. The evidence with respect to his understanding of Mr. Lapen­sée's role in the campaign is less clear. While we heard evidence that Mr. Lapens6e was a vocal supporter of the union, Mr. Lipic denied any knowledge of Mr. Lapensée's involvement and denied that he had Mr. Lapensée's union activity at all in mind in deciding to terminate his employment.

27. Mr. Lapensée testified that a meeting occurred between he and Mr. Lipic on March 1st, 1990 in Mr. Lipic's office. He further testified that at that time Mr. Lipic advised him that he had been informed by other employees that Mr. Lapensée was involved in the union and threatened to fire him. Mr. Lipic denies that any meeting occurred in his office and denies that these comments were made. Mr. Lipic does acknowledge that during this period of time he spoke with individual employees, including Mr. Lapensée on the shop floor to "advise" them that the union was engag­ing in an organizing campaign in the workplace. Mr. Lapens6e denied that he was in any way involved. Mr. Lipic also acknowledged that Mr. Lapensée was the last employee that he spoke with.

28. In coming to our conclusions, we have taken the following into account. We heard evi­dence from other employees who saw Mr. Lapensée going into the office in or around late Febru­ary or early March which is consistent with Mr. Lapensée's testimony. There was also hearsay evi­dence from those employees as to what occurred in that meeting upon which we place little if any weight. Filed as an exhibit however was Mr. Lapensée's time card for March 1, 1990. It indicated a code 12, indicating that Mr. Lapensée was in a meeting for the period of time noted. Mr. Lapensée asserts that this was the meeting with Mr. Lipic. Although Mr. Lipic denied such a meeting we received no other explanation for the code or any alternative explanation as to what meeting had taken place.

29. We also heard evidence of a phone call made by Mr. Lapensée to Mr. Lipic concerning a note that Mr. Lapensée found in his lunch box. Mr. Lapensée asserts that the note warned him that Mr. Lipic wanted to "get rid of him". Again, while Mr. Lapensée's own evidence was shaky at best, the evidence that the phone call had been made was corroborated by his wife who was a cred­ible witness and who was not cross-examined on that point.

30. We find it difficult to accept that Mr. Lipic was simply advising employees of an orga­nizing campaign while not also implicitly indicating his own view and seeking information on the subject. Nor are we surprised that employees would deny any involvement in the union to him. Overall, in light of the acknowledgement by Mr. Lipic that he did discuss the union's organizing campaign with employees, and the evidence regarding a meeting with Mr. Lapensée and a phone call, we do not accept Mr. Lipic's statement that he was unaware that Mr. Lapensée was engaged in union activity.

31. In reviewing the incident that triggered Mr. Lipic's decision to terminate Mr. Lapen­sée's employment in order to determine whether it was free of any anti-union animus, we note the following. While we accept that Mr. Foster believed Mr. Lapensée to be serious in his request the two other employees present did not share that view. In their view, it was essentially a stupid remark on Mr. Lapensée's part but consistent with his reputation in the plant for being somewhat of a joker. If Mr. Lapensée's request were serious, we find it difficult to accept that he would make the request in front of other employees. It was evident that Mr. Lapensée and Mr. Simoni do not share a good relationship and if serious, Mr. Lapensée was taking a great and unnecessary risk in Mr. Simoni's presence.

32. While Mr. Lipic's stated concern regarding the request for files was based on protecting the company from its competition, he was also aware at that time that the union was organizing in the workplace and it is reasonable to infer that he would have concerns about the union having access to information. Mr. Lipic also did not interview either Mr. Collard or Mr. Simoni at the time but acted solely on Mr. Foster's account. We also note that while Mr. Foster recounted Mr. Lapens6e's request as a request to "steal us some files" Mr. Lipic attributes an intention solely to Mr. Lapensée. This decision to terminate is taken in the context of an employee of some ten years service. While Mr. Lapensée's record leaves something to be desired, it had been clean for almost two years prior to this incident. One would have thought that in deciding to discharge such an employee on the basis of such a serious allegation, a full and complete investigation would have been conducted. The fact that Mr. Lipic sought the advice of counsel is inconclusive in the circum­stances.

33. While we do not condone Mr. Lapensée's behaviour even as some kind of joke and while much of his own evidence lacked credibility, in reviewing the evidence in total, we are not satisfied that Mr. Lipic's decision was free of any anti-union animus. Having regard to that finding, we declare that the respondent has violated sections 64, 66(a) and (c), and 70 of the Act and hereby order the respondent to reinstate Mr. Lapensée to employment with full compensation for all lost wages, benefits and seniority. We also direct the respondent to post for 60 consecutive days in conspicuous places in the workplace the Notice to Employees attached as Appendix "A" to this decision.

34. The panel will remain seized in the event that the parties are unable to resolve any issue of compensation.

Appendix A

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE ARE POSTING THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD. AFTER A HEARING IN WHICH THE UNION. THE EMPLOYER, AND A GROUP OF EMPLOYEES PARTICIPATED THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LAROUR RELATIONS ACT BY DISCHARGING MR. DANIEL LAPENSÉE FROM EMPLOYMENT.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY AND ALL OF THESE THINGS.

DRILLEX INTERNATIONAL OF CANADA INC

PER:________________________________________________

(AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 12TH day of FEBRUARY 1991