[1991] OLRB Rep. June 728
3027-90-R; 3358-90-U National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Atlas Specialty Steels, a Division of Sammi Atlas Inc., Respondent v. Independent Canadian Steelworkers Union, Intervener; Independent Canadian Steelworkers Union, Complainant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Respondent
BEFORE: Robert Herman, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: L. N. Gottheil and W. McKay for the applicant; S. Shamie, D. McKeown and Bill Heath for Atlas Specialty Steels; Robert Reid and L. Gobbi for intervener, Independent Canadian Steelworkers Union; Barry Fitzgerald on his own behalf.
DECISION OF THE BOARD; June 6, 1991
This is an application for certification in which a pre-hearing representation vote was requested and has already been taken. Certain objections to the vote had been received from the intervener, Independent Canadian Steelworkers Union ("ICSWU") and from an individual employee, Barry Fitzgerald. This is also a section 89 complaint filed by the ICSWU, in which it alleges that the applicant CAW-Canada has breached sections 70 and 71 of the Act. Both the section 89 complaint and the objections to the vote in the certification application involve campaign events leading up to the representation vote.
At the conclusion of the hearing, the Board issued a short oral decision, dismissing the section 89 complaint for failure to disclose a prima facie case, and indicating that the Board, in the exercise of its discretion, would not be directing that a new representation vote be held in the certification application. The Board also directed that a certificate issue forthwith to the applicant. We now provide our reasons for those decisions.
The Independent Canadian Steelworkers Union has been the bargaining agent for the employees of the company since approximately 1943. In this certification application, the CAW-Canada has applied to displace the ICSWU as bargaining agent, and it requested that a pre-hearing representation vote be taken. Because an incumbent union had bargaining rights, the representation vote would present employees with a choice of whether they desired to continue to be represented by the ICSWU, or whether they wanted the CAW-Canada to become their bargaining agent. The campaign preceding the representation vote was heated and intense, and had a very visible presence in the work-place.
The vote was scheduled to be taken on March 21, 1991. On March 19, 1991, the ICSWU filed the section 89 complaint, alleging that the CAW-Canada had breached sections 70 and 71 of the Labour Relations Act, in that it had, on or about March 7, 1991, through the actions of an identified individual, circulated to employees of Atlas Specialty Steels, a paper entitled "ICSWU Executives' Code of Ethics". The ICSWU asserted that this paper attributed to the ICSWU executive the following view:
To keep our executive positions at all costs, this may include cheating and lying to the membership, but that's atright because they will never find out.
The complaint further alleged that the document had been distributed widely to the employees of the company and posted on company bulletin boards, all during working hours. It alleged that the information was calculated to prejudice the ICSWU in the certification application and to persuade employees to refrain from continuing to be members of the ICSWU. The ICSWU also indicated that it had attempted in writing and by word of mouth to rebut the accusations noted above. It further alleged that the statements made by the CAW-Canada were false and damaging to the ICSWU's reputation, and they were calculated to intimidate or coerce employees of the company into support for the CAW-Canada. The ICSWU asked that the pre-hearing vote scheduled for March 21,1991 be cancelled and re-scheduled, or alternatively, that the CAW-Canada's certification application be dismissed. It also requested that the Board direct that the President of the CAW-Canada issue a public apology and withdraw the allegations contained in the circulated paper.
The pre-hearing representation vote was held, as scheduled, on March 21, 1991. All parties had scrutineers present during the balloting. All three signed a Certification of Conduct of Election certifying that the balloting was fairly conducted and that voters were given an opportunity to cast a secret ballot. The parties also signed the Consent and Waiver, whereby they agreed to the immediate counting of the ballots, and whereby they each waived any objection as to the regularity and sufficiency of the balloting. There was no request that the ballot box be sealed. Accordingly, the ballots were counted and the results disclosed forthwith to the parties. Although the vote was close, over fifty per cent of the ballots cast were marked in favour of the applicant CAW-Canada. The Report of the Returning Officer was posted in the work place, advising employees that they had until April 2, 1991, to file any statement of desire to make representations with respect to the vote.
Subsequent to the vote and the disclosure of the results, three further documents were received by the Board. In a letter dated March 28, 1991, but received by the Board on April 4, 1991, counsel for the ICSWU forwarded additional allegations in support of the previously filed section 89 complaint. In these further allegations, the ICSU alleged that between February 26, 1991 and March 21, 1991, the grievors (the executive of the ICSWU) were dealt with by representatives of the CAW-Canada, who had distributed literature on behalf of the CAW-Canada, contrary to sections 70 and 71 of the Act, and that they did on their own and on behalf of the CAW-Canada circulate to employees a series of information bulletins indicating that "the CAW is not interested in the union funds you have accumulated" which funds were held by the ICSWU, and further stating that employees could be entitled to a refund "in this case about $2,000.00 to each person". This literature was alleged to have been distributed widely to employees during working hours. The ICSWU asserted that the information was calculated to prejudice the ICSWU in the certification application. It alleged that the effect of the literature was to coerce employees by promises of direct financial benefit into support for the CAW-Canada, in preference to support for the ICSWU.
In oral submissions at the hearing, the ICSWU indicated that in fact the information bulletin dealing with the refund had been circulated to employees on February 25, 1991, and had remained in circulation after that date, and substantial discussion ensued amongst the employees about the possibility of individuals receiving $2,000.00 each, if the CAW-Canada were to be successful in its application.
In addition to the section 89 complaint, two objections to the vote (statements of desire) were received by the Board. The first was filed on behalf of the ICSWU, which both challenged the reliability of the balloting and the counting of the ballots, and repeated and expanded upon the allegations contained in its section 89 complaint. The objections to the balloting were however, withdrawn at the hearing.
The Board also received a statement of desire from Barry Fitzgerald, an employee in the bargaining unit. Mr. Fitzgerald alleged that behaviour on the part of the CAW-Canada was improper in that it violated the seventy-two hour ban on electioneering required by law. At the hearing, Mr. Fitzgerald acknowledged that there had been no such ban in effect at the time, nor any legal requirement for one. Mr. Fitzgerald also alleged that "the CAW engaged in a campaign of deliberate deceit in that they published a bulletin, dated February 25, 1991, in which they apparently tried to buy votes with the assets of the ICSWU. There is no basis in fact to support this statement, 'the final decision is up to you, the membership, and don't let anyone tell you different.' A preceding statement led members to believe that they could receive $2,000.00 in cash if the CAW was elected, and that is false. I further allege that the CAW bulletin, dated March 7, 1991, promises no change from the current dues structure, which is an illegal (under CAW constitution article 17, section 2) promise, in that many members of the bargaining unit would be paying less than the minimum required by the constitution. This amounts to buying votes with questionable discounts."
A hearing was held to deal with the section 89 complaint and the objections to the vote forwarded by the ICSWU and Mr. Fitzgerald. At the hearing, the CAW-Canada asked that both the section 89 complaint and the Statements of Desire be dismissed, in that no prima facie case existed, or alternatively, the Board would not in any event in the exercise of its discretion direct that a new representation vote be held. For purposes of our ruling, we have accepted as true and provable the allegations contained in the materials filed by the ICSWU and Mr. Fitzgerald, as expanded upon them at the hearing.
Sections 70 and 71 of the Act read as follows:
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union.
The meaning of "intimidation or coercion" within the context of section 70 has been considered in a large number of prior Board decisions: see, for example Keith MacLeod Sutherland [1983] OLRB Rep. July 1219. In order for there to be even an arguable case for a breach of section 70, there must be intimidation or coercion of a sort which seeks to compel a person, amongst other things, to refrain from exercising any of the rights they might enjoy under the Act. There must be some force or threatened force, whether of a physical or non-physical nature. As the Board stated in Keith McLeod Sutherland:
…… there must be a threat or other intimidating or coercive action coupled with an express or implied demand that a person (for example) refrain from exercising a right under the Act or from performing an obligation under the Act.
In the instant case, however, there is no suggestion that the CAW-Canada made any threats amounting to intimidation or coercion, nor for that matter that it sought to compel any person to vote a certain way, or to refrain from exercising any rights they are entitled to under the Act. Accepting the allegations as pleaded as factually correct, CAW-Canada made derogatory, perhaps defamatory, comments about executive members of the ICSWU. It also indicated that perhaps employees would benefit from the dispersal to each of $2,000.00 from the funds in the ICSWU coffers. Neither of these statements amount to intimidation or coercion within the meaning of section 70 of the Act, nor do they seek in any fashion to interfere with the exercise of a person's rights under the Act.
For these reasons, the Board was satisfied that the ICSWU had not made out a prima facie case for any breach of section 70 of the Act, and the complaint was dismissed in that respect.
Insofar as section 71 is concerned, on its very wording, that section does not prohibit a union from attempting at the work place, during working hours, to engage in an election campaign or otherwise try to influence employee wishes with respect to union representation. Nothing in the allegations suggests in any fashion that the CAW-Canada might have breached section 71 of the Act. Accordingly, the complaint pursuant to section 71 was also dismissed.
Turning to the statements objecting to the vote, again, for purposes of our decision, we accept as true and provable the allegations contained in the representations filed by the ICSWU and Mr. Fitzgerald. The Board has commented in a large number of cases on the approach it takes in these circumstances. We do not intend to repeat most of the cases referred to the Board by the parties, as they amount generally to a paraphrasing of the same issue.
In Crock & Block Restaurant [1984] OLRB Rep. Jan. 19, at paragraph 8 therein, the Board recorded its oral ruling declining to direct a new representation vote:
Indusmin Limited, [1982] OLRB Rep. Nov. 1641 sets out the Board's jurisprudence on representation vote propaganda and the degree to which the Board will respond to inaccurate or misleading propaganda by ordering a second vote. Reference may also be made to the yet unreported decision of the Board dated October 26, 1983 in Vogue Brassiere Limited, Board File #0646-83-R.
As those decisions indicate, the Board does not normally interfere with a vote preceded by propaganda which is speculative, exaggerated, misleading or even false. The Board recognizes that in representation votes as in other electoral processes voters must be presumed capable of assessing critically the conflicting arguments often presented by the interests which compete for their votes.
In our unanimous view, the statements here attributed to the union's representatives are not of such a nature that the critical faculties of employee voters would have overpowered.
We conclude, therefore, that we would not order a new vote even if the applicant proved all she has alleged.
In Concorde Metal Stampings [1987] OLRB Rep. Jan. 34, the Board made the following comments:
... Where the applicant union, as an institution, suggests that employees will be penalized because of the free exercise of their franchise, the Board may also be inclined to intervene. However, where the allegations concern friction between rank and file employees, the effective administration of the Act and the achievement of its objectives requires a recognition of the fact that for some employees, union representation can be a volatile and emotional issue. Debate may degenerate into bad feelings, ruined friendship and recriminations. While the Board always has the authority to set aside a representation vote and order a new one, that is not a neutral decision, nor one which should be lightly taken and in our view should not be taken unless the occurrences are so serious and pervasive as to render improbable a reliable expression of employee wishes despite the sanctity of the ballot box.
... But, by the same token, if union opponents propose to challenge a secret ballot vote on the basis of a "pervasive atmosphere of intimidation" which renders its results unreliable, citing individual incidents which occurred in the weeks or months preceding the vote, they must raise their concerns in a timely manner or risk the inference that they are reacting to the outcome of the vote rather than the allegedly negative atmosphere in which it was conducted.
And finally in Northfleld Metal Products Ltd. [1989] OLRB Rep. Jan. 57, the Board set out the oral decision it had given at the hearing as follows:
... The Board is of the unanimous view that no evidence need be heard as the allegations, on the assumption they are true, would not lead us to grant a new vote. The test as applied by the Board is whether or not the actions complained of are coercive or destroy the secrecy of the ballot. The test is not based on the most gullible or the most firm voter, but the reasonable voter who is possessed of critical faculties and the ability to assess issues and inquire on his or her own behalf.
Whichever phrasing one prefers, the essential approach and concern remain the same. A new representation vote will not be directed unless the circumstances were such that the Board concludes that, despite the secrecy and reliability of the ballot box, the vote was not likely to have been a reliable expression of the employees' wishes. Here, the reliability of the secret ballot has not been in any meaningful way undermined.
There are essentially three occurrences of which complaint is made. The first relates to the bulletin published by the CAW-Canada in which it indicated that it was not interested in the union funds that the ICSWU had accumulated. The bulletin indicated that if the CAW-Canada was successful in the representation vote, employees might be entitled to a refund of approximately $2,000.00 each from these moneys. This information was given to employees on February 25, 1991, a little over three weeks before the representation vote was held. During this period, the ICSWU itself provided information responding to this statement. There was ample opportunity for employees to evaluate the positions of the candidates, and to freely exercise their choice as they saw fit. Even assuming, as we have for purposes of our ruling, that the information was circulated by the CAW-Canada in an attempt to prejudice the ICSWU in the election campaign, there is nothing in the statement which would interfere with the reliability and sanctity of the representation vote. Campaign promises and representations are the very substance of election campaigns. Employees had ample time and information on which to assess how they ought to vote.
The second incident complained of was the circulation by an individual, on behalf of the CAW-Canada, of a paper in the work place which made disparaging and untrue comments about members of the executive of the ICSWU. This document was circulated on March 7, 1991, two weeks before the representation vote was held. The Board does not condone the circulation of such materials. But however unfortunate, exaggerations, misrepresentations, verbal attacks, scurrilous comments, unbelievable promises, and inflammatory rhetoric form part of election campaigns. They are the sorts of statements and tactics that employees are able to evaluate and place in perspective. The statements in the instant case were not of a nature that would interfere with or undermine the efficacy of the secret ballot representation vote. This incident occurred two weeks before the vote was held, with ample opportunity again for all employees to investigate and inform themselves of the true state of affairs. The ICSWU had represented employees in this bargaining unit for approximately 38 years. A statement made by someone on behalf of the raiding union, calling the ICSWU executive cheaters and liars, two weeks before the election was held, would not impair the ability of employees to freely exercise their vote, nor interfere with the reliability and sanctity of the ballot box.
With respect to the third incident, Mr. Fitzgerald alleged that the CAW-Canada bulletin of March 7, 1991 promised no change from the current dues structure, and such a promise was illegal under the CAW constitution. Whether or not such a promise would be illegal under the CAW constitution is not of particular assistance. The question for the Board is the likely effect of such a promise on employees. A promise not to raise dues in no way would interfere with an employee's ability to freely choose how to vote.
For these reasons, the Board ruled orally at the conclusion of the hearing that it would not direct a new representation vote, or provide the other remedial relief requested, and indicated that a certificate would issue forthwith to the applicant.