James Patterson v. Retail, Wholesale and Department Store Union, Local 414, 1991 CanLII 6192

James Patterson v. Retail, Wholesale and Department Store Union, Local 414

[1991] OLRB Rep. June 787

2910-90-R James Patterson, Applicant v. Retail, Wholesale and Department Store Union, Local 414, Respondent v. Western Inventory Service Ltd., Intervener

BEFORE: Robert Herman, Vice-Chair, and Board Members W. H. Wightman and D. A. Patterson.

APPEARANCES: C. J. Abbass and James Patterson for the applicant; Eric del Junco for the respondent; Brett Christen, N. Ford and P. Melady for the intervener.

DECISION OF ROBERT HERMAN, VICE-CHAIR, AND BOARD MEMBER, D. A PATTERSON: June 25, 1991

1. This is an application for termination of bargaining rights made pursuant to section 57 of the Act. There is no dispute that the instant application is timely.

2. At the conclusion of the hearing, the majority of the Board orally ruled, with reasons to follow, that the petition was involuntary and that the application was dismissed. We hereby provide our reasons.

3. This is the fourth application for termination that has been filed, with respect to the same bargaining unit, within a period of approximately three months. The first three applications were all filed by another employee in the bargaining unit, Steve Cochrane. The first application filed by Mr. Cochrane was untimely, and was dismissed on that basis, without a full hearing, by the Board. The second application filed by Mr. Cochrane (Board File No. 2353-90-R), was dismissed after a hearing, on the basis that the petition was found on the evidence to be involuntary. Two matters relied upon by the Board in its decision dismissing that application remain relevant. After the first termination application had been filed by Mr. Cochrane, on November 6, 1990, he posted a notice on the employee's bulletin board. That notice clearly indicated his opposition to the union and his view that an employee association should be formed. The company allowed Mr. Cochrane's notice to remain posted for approximately three weeks. In contrast, the company took immediate steps to remove a notice posted by a union supporter. Second, shortly after Mr. Cochrane's anti-union notice was posted, in early December, the employer set up an employee committee and selected Mr. Cochrane to be one of its members.

4. Both these events would have made clear to employees that the company was opposed to the union as bargaining agent. These factors, as noted, formed part of the reason for the Board's dismissal of the earlier application. That decision of the Board was dated January 28, 1991.

5. The applicant in the instant proceeding, James Patterson, had been an employee of the company only since mid-December, 1990. After going to a meeting of employees, called by the union, in order to ratify the collective agreement, Mr. Patterson decided to oppose the union. He then spoke to Steve Cochrane, the applicant from the first two termination applications. At the time they spoke, Mr. Cochrane had already filed his third termination application. He did so two days after the decision dismissing the second application. Mr. Cochrane advised Mr. Patterson about the steps necessary to decertify the union. Mr. Cochrane handed over to Mr. Patterson a number of the termination documents which he had. On February 7, 1991, the instant application was filed. No petition had yet been started (with respect to this application). On February 12, 1991, Mr. Cochrane's application (his third) was withdrawn.

6. Mr. Patterson learned, on the evening of February 11, 1991, that the union and the company were holding a meeting the next morning at the local Holiday Inn. That same evening, Mr. Patterson phoned up a number of employees to encourage them to join him the next day in picketing the union at the meeting with the company. For those employees scheduled to work the next day, Mr. Patterson suggested that they phone the company and book off work. A number of them expressed some concerns about whether the company would penalize them for doing so.

7. The next morning, approximately eleven of the 34 employees showed up at the company's premises, and together they went to the Holiday Inn. At the Holiday Inn, Mr. Patterson and Mr. Cochrane, and one other employee, approached the company negotiators to express their dissatisfaction with the union representation and to request that a representation vote be held. The company advised them, in effect, that only the union could assist them with that. The company spokespeople expressed no concern about the employees being on "strike" or missing work, nor about any disruptions to work that their anti-union protest might have caused. The employees then spoke to the union officials, but were rebuffed in their request. It was clear to the company and to the employees present at the hotel that Mr. Patterson was the leader of the group of striking employees and that the strike was to oppose the union, not the company. It would also have been clear that Mr. Cochrane was associated with Mr. Patterson in this protest.

8. The next day the company had posted on the bulletin board a notice addressed to all the employees of the Toronto crew, and not only those who had engaged in the strike and picketed the union. That notice indicated that the company's work schedule had been interrupted and that the company had to make alternative arrangements to service its customers. The notice further indicated that the company viewed this as a strike by the employees. The company advised employees that the actions "of those employees who engaged in the strike of February 12, 1991 are not condoned by the company." Other than the posting of this notice in the work places addressed to all employees, the company took no action whatsoever with respect to the strike~ nor any action against Mr. Patterson. There is no evidence that striking employees who were scheduled to work were even docked their pay for that day.

9. Within the next week or so, Mr. Patterson had started and circulated the petition and obtained all the signatures upon it.

10. In these circumstances, we are satisfied that the petition does not express the voluntary wishes of the employees. Employees would have been well aware, from the events in November of 1990, when Mr. Cochrane's anti-union notice remained on the company bulletin board for several weeks, that the company opposed the union and was prepared to take some steps to promote anti-union views. They would have been reinforced in that view when Mr. Cochrane was shortly thereafter chosen by the company as a member of the Crew Committees the employee association set up by the company to represent the employees. In this context, Mr. Patterson meets with Mr. Cochrane to learn how to decertify the union. But this time, the fourth in 3 months, Mr. Cochrane decides to remain behind the scenes. So Mr. Patterson files this application. He has only been working with the company for approximately one and a half months. When the company and the union have a negotiation session scheduled, he phones up employees and encourages them to book off work and join him in a strike against the union. At the strike, this new employee is seen together with Mr. Cochrane, the individual whom employees would have perceived as being linked to management. Indeed, in part this perceived link was the reason for Mr. Cochrane not being an applicant. At the meeting site, the company in no way objects to the employees not working or to them opposing the union. Indeed, it directs them to the union. The company never takes any action against the employees who were picketing. It merely posts a notice to all employees indicating that it does not condone the activity.

11. There would be no question in the minds of employees that Mr. Patterson was associated with Mr. Cochrane. And there would be no question as to the company's position with respect to the union representation, and the fact that the company had taken and was continuing to take action in support of that view. Employees would be under pressure to oppose the union. They would perceive Mr. Patterson and Mr. Cochrane as linked with management.

12. In all these circumstances, we are not persuaded that the written statement supporting this application represents the voluntary wishes of all those who signed it. Accordingly, and for the above reasons, this application was dismissed.

DECISION OF BOARD MEMBER W. H. WIGHTMAN; June 25, 1991

1. As indicated at paragraph 8 of the majority decision the company chose to describe the activities of February 12, 1991 as a "strike" in the notice to employees. Whether the activity constituted a "strike", and if so, whether the "strike" was lawful or unlawful, and whether or not the conduct was a protected activity under the Act we perhaps shall never know because only the Board can make those determinations and, thusfar at least, those issues have never been put before the Board for determination.

2. In the circumstances I see nothing unusual in the company being disinclined to take punitive action. Moreover, notwithstanding the reasons for the failure of three previous termination applications (by a different individual), in the face of those applications, I can agree that employees no doubt concluded that the company is opposed to the union. I could also understand that the company may have concluded that neither is the union in full command of the hearts and minds of all employees. But none of this persuades me that there are not a substantial number of employees whose wish it is to have the union's support tested via a secret ballot and I would have so ordered.