[1994] OLRB REP. OCTOBER 1407
1903-94-R United Food and Commercial Workers Union, Local 633, Applicant v. R.J. Chartrand Holdings Limited c.o.b. as Chartrand's Your Independent Grocer, Responding Party v. Group of Employees, Objectors
BEFORE: Gail Misra, Vice-Chair, and Board Members S. C. Laing and C. McDonald.
APPEARANCES: Bernard Fishbein and Robin McArthur for the applicant; R. W. Kitchen and R. J. Chartrand for the responding party; Chuck Needham for the objectors.
DECISION OF THE BOARD; October 11, 1994
The style of cause of this proceeding is amended to reflect the correct name of the responding party employer: "R.J. Chartrand Holdings Limited c.o.b. as Chartrand's Your Independent Grocer".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
The applicant (also referred to as the "union") seeks to represent the Meat Department employees of the responding party in the town of New Liskeard. As a result of discussions between the parties, three issues were to be argued before the Board at the hearing. However, at the commencement of the hearing the responding party, the "employer", indicated to the Board that it had withdrawn its issue regarding the geographic scope of the bargaining unit. Having regard to the agreement of the parties, the Board finds that:
all Meat Department employees of R.J. Chartrand Holdings Limited c.o.b. as Chartrand's Your Independent Grocer in the Town of New Liskeard, save and except Meat Manager and persons above the rank of Meat Manager,
constitute an appropriate unit for collective bargaining.
- The application for certification was filed on August 30, 1994. On August 29, 1994, the Board received a document dated August 19, 1994, signed by sixty-six employees, which stated as follows:
To whom it may concern
We the employees of Chartrand's Your Independent Grocer whish [sic] to file a complaint against R. W. D. S. U. "Retail Wholesale Department Store Union" and its representative.
They have harassed us by repeatedly calling our homes after receiving a "NO" answer every-time or by late phone calls after 11:00 pm and later. Disturbing family member. They have also followed us to public places, disturbing and intruding.
We would like to put an end to this immediately.
We the employees of Chartrand's Your Independent Grocer are very satisfied with our employer and do not feel that we need to be represented by any trade union.
The applicant made a preliminary motion requesting that the statement of desire outlined above be given no weight. It argued that the statement of desire refers to the Retail Wholesale Department Store Union, and not to the applicant union, the United Food and Commercial Workers, Local 633. The applicant also indicated that the membership evidence collected by the applicant union was collected on August 29, 1994, whereas the statement of desire was signed by employees on August 19, 1994, so that the cards signed are representative of employee wishes at a later date and for a different union than when the statement of desire was circulated. In addition, the union in the present application only organized the eight Meat Department workers, not the whole grocery store. Hence, the applicant argued that the documents filed with the Board on August 29, 1994, are not statements of desire with respect to this application for certification, and in any event, do not disclose that the employees for whom the union submitted membership evidence had a change of heart after they had signed membership cards for this union.
The responding party and the objecting employees made no submissions with respect to this motion.
Having considered the applicant's submissions, the Board granted the union's motion and decided that the documents filed by the objecting employees on August 29, 1994, would be given no weight. These are our reasons for that decision.
Section 8(4)-(5) of the Act states as follows:
8.-(4) The Board shall not consider the following evidence if it is filed or presented after the certification application date:
- Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by
a trade union.
Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.
Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be represented by a trade union.
(5) The Board shall not consider evidence of a matter described in paragraph 1, 2 or 3 of subsection (4) that is filed on or before the certification application date unless it is in writing and signed by each employee concerned.
Section 8(4)2 requires that the Board only consider the evidence of employees who have applied to become members of a trade union and then have had a change of heart if they file such evidence prior to the certification application date for that trade union. Employees must indicate to the Board, in writing and with signatures, the nature of their concern about membership evidence which may be filed on their behalf in support of an application for certification. For our purposes, what is critical is that the evidence must relate to or suggest that an employee who had previously become a member or applied to be one no longer wishes to be represented by the union. Here, the petition is signed, and forwarded, prior to the signing of the membership cards relied upon by the union. Since the membership cards were signed subsequent to the petition, the petition cannot cast doubt on the wishes of those employees who signed cards.
As well, the statements of desire filed bear no relation to the application filed by the United Food and Commercial Workers Union (also referred to as the "UFCW"), Local 633, or indeed to any UFCW local. The statements of desire indicate that on August 19, 1994, the petitioners wanted to file a complaint against, and did not want to be represented by, the Retail Wholesale Department Store Union (also referred to as the "RWDSU"). However, ten days later on August 29, 1994, the majority of the employees of the Meat Department did sign UFCW, Local 633 membership cards. We cannot see how a statement opposing the representation by RWDSU can cast doubt on the wishes of those who later signed cards for UFCW, Local 633.
Given the timing and the identity of the union the petition references, we decided that the document filed on August 29, 1994, by the group of objecting employees, would be given no weight in our deliberations in this application.
The final issue to be decided was the applicant's motion that the Board should dismiss, without a hearing, allegations made in the employer's response that the union organizer had engaged in improper conduct in mid-August, 1994, during the organizing drive and had sought by intimidation and coercion to compel employees to join the union. The union argued that even if the Board accepted as true all of the allegations made in the response, there would be no grounds for the Board to dismiss the application or to order that a representation vote be held, the remedies the responding party was seeking. The union premised its argument on Rule 24 of the Board's Rules of Procedure. However, Rule 24 more properly applies to the way in which the Board may consider written material filed prior to a hearing. In this case, the question for the Board to consider was whether the allegations in the response, even if all taken to be true and provable, disclosed a prima facie case.
Having heard the submissions of the applicant and the responding party (the objecting employees made no submissions), the Board ruled orally that the responding party's allegations of improper conduct were dismissed. These are our reasons for that decision.
It was not disputed that the two employees referred to in the employer's allegation were not employees of the Meat Department, were not persons who could fall within the agreed bargaining unit, and neither had signed a membership application in support of the present application for certification. UFCW, Local 633 is a quasi-craft local which encompasses meat cutters. The union conceded that the organizer in question was an organizer for the union and as such was a representative of the union.
The employer argued that notwithstanding that the employees who were the subject of the allegations were not going to be in this bargaining unit, or in the department affected, since the union organizer had made threats of economic reprisals in unidentifiable future workplaces, the Board should therefore hear the evidence of the allegations.
The Board requires a high degree of integrity on the part of union officials involved in organizing drives, and where the Board finds that the union organizer has acted improperly in the conduct of the organizing drive, the Board may conclude that it cannot place reliance on any of the membership evidence submitted by the union in support of its application for certification. In making its assessment in each case, the Board considers whether the impugned coercive action would cause the reasonable employee to act contrary to his or her inclination. (See The Kendall Company (Canada) Limited, [1975] OLRB Rep. August 611). Where employees have signed cards as a result of coercive conduct by a union, the Board has discounted the membership evidence of such individuals and, in some cases, dismissed the applications for certification.
In the case before us, the responding party is seeking to have the Board hear evidence of threatening comments alleged to have been made in the course of a different organizing drive than the one which led to the application before us. In addition, the employees in question are not affected by the present application, and, in any event, did not sign cards in support of the union.
There was no dispute that all of the membership evidence filed by the union in support of this application relates to Local 633 of the UFCW, and does not relate to the RWDSU, and that it was all collected on August 29, 1994, sometime after the original RWDSU campaign to organize the whole grocery store operated by the responding party had been abandoned. While the Board considers seriously allegations of union organizer impropriety, there must be some nexus between the conduct complained of and the organizing drive which culminated in the application for certification before the Board. In the circumstances of this case, there are no material facts alleged which sufficiently link the original RWDSU organizing drive in the entire grocery store, and the subsequent UFCW, Local 633, application filed in respect of only the Meat Department. It was therefore unnecessary for the Board to hear evidence with respect to the allegations made by the responding party in its response.
For the above reasons, the Board dismissed the responding party's allegations for want of a prima facie argument.
The application for membership cards are signed by each employee concerned, are dated within the six-month period immediately preceding the application date, and are supported by a duly completed Declaration Verifying Membership Evidence.
On the basis of all of the evidence before it, the Board was satisfied that more than fifty-five per cent of the employees of the responding party in the bargaining unit on August 30, 1994, the certification application date, had applied to become members of the applicant on or before that date.
In its oral decision of October 3, 1994, the Board had therefore indicated that a certificate would issue to the applicant.