Ontario Labour Relations Board

[1994] OLRB Rep. November 1572

1988-94-R Hospitality & Service Trades Union Local 261, Applicant v. FJS Hold­ings (c.o.b. as My Cousin's Restaurant), Responding Party

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

APPEARANCES: Peter I. Barnacle, Ainslie Benedict, Peter Goodman, Natalie Hatina and Tracey Thompson for the applicant; Andrew Tremayne, Joe Eyamie, Same Eyamie and Joe Eyamie Jr. for the responding parties.

DECISION OF THE BOARD; November 9, 1994

1. This is an application for certification. The parties are agreed on a number of issues, but a hearing was required to deal with certain allegations regarding the applicant's conduct during the organizing campaign leading up to the application.

2. For ease of reference the applicant will be referred to as the union and the responding party as the employer.

3. A preliminary matter was raised relating to whether or not counsel for the union had a conflict of interest such that the Board should remove him as counsel on this matter. The employer had on two previous occasions retained other lawyers at the firm where union counsel works. One was a mortgage and lease matter, and the other was telephone advice about an overtime question. Both counsel relied on MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), 3 S.C.R. 1235. As well, union counsel referred to the Board to Countryside Food Store Ltd. v. Duncan Mills Ltd., a decision of the B. C. Supreme Court, Registry No. 4263/93, dated February 2, 1994. For brief oral reasons, given at the hearing, we declined to order counsel removed. The Board was satisfied that counsel was retained only to deal with the allegations concerning membership evidence. The issues arising from those allegations did not involve any factual or legal overlap with the matters previously dealt with by union counsel's law firm. We declined to comment on any future retainer. We note that both coun­sel seem to have taken the jurisdiction of the Board to remove a solicitor for granted. There are other views, as discussed in Anna Wilson, [1990] OLRB Rep. Apr. 481. As the Board was of the view in this case that even if we have the jurisdiction, we would not be inclined to remove Mr. Bar­nacle, the question of jurisdiction did not need to be decided.

4. The allegations before the Board relate to whether or not employees who signed cards were told that if they did not sign they would not be protected if the union came in. There were a number of allegations on which no evidence was called. We will deal only with the one on which we heard evidence. The others are hereby dismissed.

5. We heard evidence from five witnesses. For the employer we heard from Jessalyn Miller, a server and Joseph Eyamie, Jr., the manager and a member of the family which owns the employer's restaurant. For the union, we heard from three witnesses, Peter Goodman, a union staff member, Natalie Hatina, a server and Tracy Thompson, a bartender at the restaurant.

6. My Cousins is a restaurant in Ottawa, owned and run by the Eyamie family. In July, 1994 an organizing campaign was started by the union. Peter Goodman, a union staff member, was given responsibility for the campaign. Another staff member, John Kearney assisted him from time to time. The campaign started in late July or mid August and lasted until August 31, 1994 when the application for certification was filed.

7. Mr. Goodman met Ms. Hatina and Thompson at a bar around August 13 or 14 and answered questions about unions and the organizing campaign. They subsequently spoke to other employees about the union.

8. Ms. Miller testified that Ms. Hatina, in the presence of Ms. Thompson, said, "If I did not sign a card I would not be protected." Ms. Miller told them that she did not want to sign any union card until she had met the union representatives. Ms. Thompson's recollection was that Ms. Miller was primarily concerned about strikes, and had said she would not strike. Ms. Miller, Ms. Thompson said that Ms. Hatina said to Ms. Miller that if she wasn't going to sign, if she got fired then how were they supposed to protect you and Ms. Hatina went on and explained that she did not think that if she signed that anyone would know, because it would be confidential. Ms. Miller then said she would call Mr. Goodman. Ms. Thompson explained to Ms. Miller on the same occa­sion that if she did something really wrong like stealing, no one was going to protect her. Ms. Hati­na's account of this conversation was that she and Ms. Thompson voiced their opinions about why they thought the union would be good. Ms. Miller's version was not put to Ms. Hatina on cross-ex­amination.

9. Ms. Miller did meet Mr. Goodman, probably about 10 days later, at a gathering at the apartment shared by Ms. Hatina and Thompson on August 29, 1994. This meeting was attended by 15 to 20 people, mostly employees at the restaurant. Two ex-employees and some relatives of employees attended. Peter Goodman and John Kearney, who had worked for the union longer than Mr. Goodman, were present on behalf of the union to answer questions. Mr. Kearney appar­ently did most of the talking on behalf of the union.

10. Ms. Miller said that several allegations were made by Natalie and Tracy about unlawful and wrongful dismissal of two people who had worked there. These ex-employees spoke about their departure from the restaurant at the August 29 meeting. The reasons they gave for their departure were different than ones Ms. Miller later heard from members of management. Ms. Miller thought that because the union representatives were present that these allegations must be true, although the representatives themselves did not make them. Ms. Miller said that the conver­sation surrounding the departure of these employees was to the effect that if "we didn't have a union we would not be protected." One of the ex-employees said that if she could be forced out so could the others; if there was no union they were not protected. Ms. Thompson testified that what she heard at the meeting was that one had quit when her schedule was changed and another left because of other undesirable circumstances at work.

11. As well, Ms. Miller testified that at the meeting she was talking to Ms. Hatina, and that she was told, as she had been on the earlier occasion recounted above, that if "I did not sign I would not be protected." Her testimony about what Ms. Hatina said was as follows: "Take a look around. See how many people are here. We have the numbers. If we go union and management goes nuts, like I would not be protected. I could not be helped." On cross-examination, Ms. Miller said she recalled that someone raised the question to one of the union officials, if they would be protected if the employer acted against them in some way. She disagreed with the proposition that the response from Mr. Kearney was that just being at the meeting would be enough to protect everyone because it would be union activity under the Act. She said she understood that being at the union meeting identified union involvement, but that you had to sign a card to get protection. She did not recall the question being raised about going to the meeting giving protection. When told Mr. Goodman would testify to the effect that the response was that employees would be protected just by being at the meeting, she testified that there was a lot of commotion at the meeting, and people talking loudly all at once. She significantly qualified her previous testimony by adding, "How the questions were asked and what was implied by their answers I can't comment on, only my understanding of them." When pressed further on cross-examination, Ms. Miller said that she may not have heard the whole question - that all she understood was that if you were at the meet­ing, you were already involved in the union. Later in her testimony, she said she understood that if she did not sign a card, she could lose her job for any reason her employer had, or if he "went nuts" when the union came in: "I understood the union was going in and I would not be protected if I did not sign." She recalls that Peter and his associate said that just being at the union meeting meant "we were involved in it." Later she said "I contacted him and he tried to say it meant some­thing different. At the time I understood that if I was there I was already involved and if I did not sign I wasn't protected" (from losing her job).

12. Mr. Goodman denies that any such statements were made by him, or Mr. Kearney. He says that what was said was that eventually the company would learn of the meeting and that whether an employee signs or not the decision to attend is a right under the Act, so subsequently that would protect them. He said he did not know where the idea that you had to sign to be pro­tected came from. Similarly, Ms. Hatina and Ms. Thompson both testified that someone raised the concern in the meeting about what would happen if they did not sign a card, would they still be protected, and that Mr. Kearney said that just being in the room was enough union activity to be protected whether employees choose to sign or not. Ms. Thompson also said that a question was asked as to whether one could get fired for participating in union activity or signing a card, and the answer was "No", and you were protected.

13. At the conclusion of the questions and answers at the meeting, Ms. Miller declared, unsolicited, that she was prepared to sign a card. She said she did this in response to the alleged mistreatment of the ex-employees. She said one was fired with two weeks notice and the other quit.

14. Ms. Miller also says she was told that they could "hire or fire" the union at any time -that if employees did not feel they were doing what they wanted they could get rid of them. It appears Ms. Hatina's understanding about decertification was somewhat sketchy, and that she may have communicated her sense to Ms. Miller. There is no direct evidence that anyone from the union gave this information to either Ms. Hatina or Ms. Miller.

15. There was also a gathering over the Labour Day weekend, again at Ms. Hatina and Thompson's apartment. Ms. Miller recalls that she likely spoke to Mr. Goodman there, but does not recall the content of any conversation. Mr. Goodman's recollection was similarly imprecise. In any event, this was after Ms. Miller had signed, and there was no suggestion that anything relevant to her signing occurred at this meeting.

16. Ms. Miller had a change of heart about having signed in or around the first week of Sep­tember. She said that she talked to Christina Eyamie who clarified "why the two employees were dismissed." In addition she had been told by friends and co-workers that the union does not guar­antee job security, nor can it dictate house policy. She approached management about this, who gave her a phone number of the Ministry of Labour or the Board. She was told that the union could not guarantee job security or dictate house policy, and that it was not right to be told she could lose her job if she did not sign. With this information, she contacted Peter Goodman and asked for her card back. He informed her that the card had already been submitted and that he could not give it back. He testified that he gave a card back to someone who had asked for it before they had gone in.

17. Ms. Miller also spoke to Ms. Hatina and Thompson, and asked Ms. Hatina if Mr. Goodman had ever said anything about job security or protection for union activity. She told Ms. Hatina that Mr. Goodman had promised her job security and she felt lied to.

18. Mr. Eyamie, Jr. testified that Ms. Hatina told him that Mr. Goodman had said that if you do not sign a card right now, we cannot protect you from getting fired. This was not put to Ms. Hatina on her cross-examination, which preceded Mr. Eyamie's testimony. His notes indicated that what was said was that the employees had to sign a card first before the union could do any­thing or help them do anything.

19. The union lead a significant amount of evidence about the employer's reaction to the union drive. This was because it was the union's view that the change of heart of Ms. Miller and others could only be understood in terms of the employer's reaction. Because these matters were intended to form the basis for a section 91 complaint as well, and because it is largely unnecessary to the issues in this case, we will not be making findings about the motivation of the employer. Suf­fice it to say, that by September 7, 1994 at the latest, employees had been made aware that dealing with a union was not management's first preference. The union alleged that employees like Ms. Miller were frightened by that knowledge, and thus they looked for a way to get around the fact that they had earlier willingly signed cards. In the end, it was not necessary to make findings on that score.

20. The employer characterized the evidence as disclosing that threats to Ms. Miller's job security had been made in order to get her to sign. This, in the context of the Board's jurispru­dence, would clearly cross the line between acceptable salesmanship and misrepresentation.

21. The employer referred us to The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611, at pg. 619, para 16., and General Motors, [1980] OLRB Rep. Oct. 1437, para 12. He suggested that where the union is certifiable by only a slim margin, the Board should apply a higher standard of scrutiny to the reliability of the membership evidence. Further it was suggested that we consider the possibility that more than Ms. Miller's card should be scrutinized by the Board. He also referred to the distinctions the Board makes depending on whether a threat to job security was made by an inside organizer or paid staff. Counsel argues that the statements which caused Ms. Miller the most concern were made in the presence of union representatives, and that she did seek clarification which she did not find adequate.

22. We were referred to Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444 at para 11, p. 446. The evidence, says employer counsel shows that there is a doubt as to whether the membership evidence is reliable. Ordering a vote in circumstances where there are problems with the membership evidence is not a punitive measure, but a fulfilment of the Act's objectives that the true wishes of properly informed employees be respected. Counsel urged us to find that if the membership evidence was not free of cloud or taint, a vote should be ordered.

23. The union argued that what was before the Board were allegations of a breach of sec­tion 71, and that there was no evidence before the Board which justified such a finding or a finding that misrepresentations were made by employees or organizers - that .the responding party had failed to discharge the onus on it. The union argues that the employees, Ms. Hatina and Thomp­son, did not have experience in organizing campaigns and properly referred Ms. Miller to Mr. Goodman. Further, it is said that there is no evidence to support the idea that anything was said to the effect that employees had to sign for fear of economic livelihood. Rather, counsel submitted that the evidence was that Ms. Miller had relied on her own judgement. She asked questions, and made inquiries, as she was encouraged to do by Ms. Hatina, Thompson and Mr. Goodman.

24. The union referred us to Madawaska Hardwood Flooring, [1994] OLRB Rep. Mar. 267 at para. 10 and Roy Ayranto Sales, [1994] OLRB Rep. March 285 where comments not made by full-time organizers did not cast doubt on the reliability of the membership evidence, as well as Alderbrook Industries, [1981] OLRB Rep. Oct. 1331 for the point that indiscretions of employees are not to be held against the union. Counsel also referred to JCVR Packaging Inc., Board File No. 2378-93-R, November 30, 1993 for the proposition that the doubt which causes the Board to order votes is only after a finding of improper conduct, not just an allegation. Further, counsel argued the discretion to order a vote should be exercised in a manner consistent with the primacy of the written membership evidence.

25. Counsel for the union suggested that the frequency of subjective assertions at a later date about the circumstances of signing are central to the new amendments requiring that changes of heart be made before the application date to be effective. She argued that inevitably things change in the work place after the application is filed, that the law recognizes that employees become frightened and seek to change what they had voluntarily done before the employer reacted. By contrast, the employer argued that the standards for membership evidence are at least as high before as after Bill 40, and that the union's conduct in this case had crossed the line.

26. To employer counsel's submission that the narrowness of the margin should influence the Board's submission, union counsel said that the legislature had fixed the confidence level at 55%, and that the Board should not find that it should be higher than that. It is only if there is some other doubt, that the Board might intervene. She also noted that the margin may be higher after the disputed classifications are dealt with.

27. We are of the view that the evidence is persuasive that neither Mr. Goodman nor Mr. Kearney told employees that they would not be protected if they did not sign. Ms. Miller's evi­dence, when viewed in its totality, is not sufficient to base a finding that the paid organizers made such a representation. She acknowledged that she might not have heard all of the relevant question at the meeting, and that what she was testifying to was her understanding. Although Mr. Good­man's evidence was quite unclear about the difference between what was the plan for what to say at the meeting and what was actually said, Ms. Thompson's evidence was clear that the organizers did not make the statements alleged.

28. Ms. Millers' evidence suggests that Ms. Hatina gave her the impression she would not be protected if she did not sign before or at the meeting with the union organizers. The evidence in this area is somewhat unsatisfactory, as no one asked Ms. Hatina whether she had said anything of the kind to Ms. Miller. The question to be decided then is whether a misimpression such as the one Ms. Miller may have received after talking to another employee such as Ms. Ilatina should result in the Board's ordering a vote or not counting Ms. Miller's card.

29. The Board has always considered statements made by employees to each other in a dif­ferent light than statements made by professional organizers. In this light, employer counsel seemed to be suggesting that Ms. Hatina and Ms. Thompson would be seen as organizers because they held two gatherings at their house to discuss the union. Although that may be true for other employees, we are persuaded by the evidence that the main relationship between Ms. Miller and Ms. Hatina was a friendship, and that statements made by Ms. Hatina were taken by Ms. Miller as things that should be further checked out. The evidence that Ms. Miller told both Ms. Thompson and Ms. Hatina that she would not sign without an opportunity to speak to Mr. Goodman is strongly indicative of this. We are of the view that Ms. Miller could not have reasonably thought, and did not think in fact, that Ms. Hatina was an authority on this sub­ject, or in any position to implement some difference in treatment as to whether she signed or not. Thus, she was not, in any objective sense, intimidated in our view. We find no basis in the evi­dence on which to make a finding under section 71 of the Act.

30. The more difficult question in the circumstances of this case is whether Ms. Miller signed because of a material misrepresentation made by Ms. Hatina. At one point Ms. Miller described what was said at the meeting as, "They were telling us that if we didn't have a union we would not be protected." At other junctures she said she was told if she didn't sign she would not be protected (and it is clear that that is one of the things she took from what was said). Unfortu­nately, what remains unclear from the evidence is whether what was actually said to her by Ms. Hatina was that if you (meaning employees collectively) did not sign, then you (collectively) would not be protected (i.e. if the group does not opt for the union, the union will not be able to repre­sent you), an unobjectionable campaign statement, rather than the misrepresentation that individ­uals who did not sign would be treated less favourably than those who did sign.

31. The latter statement, although not something the Board could condone, when said by a fellow employee, is very similar to the statements allegedly made in Alderbrook Industries Limited, supra to the effect that if an employee did not join the union she might lose her job. The Board had this to say at para 13:

13. Unfortunate as it may be, it is not uncommon for antagonism to be generated between employees who line up on opposite sides of a campaign for union representation. Statements by any person amounting to intimidation or coercion of an employee, whether they are made for or against a union, are clearly contrary to section 70 of the Labour Relations Act and are grounds for a complaint under section 89 of the Act. They may also form the basis for criminal charges. It does not follow, however, that the indiscretions of employees, whether they favour a union or sympathize with their employer, are to be held against the principal parties to an application for certification. The Board can no more hold against a union a verbal threat made to an employ­ee s job security by an indiscrete employee who is neither a union officer nor a collector of union membership cards than it can hold against an employer similar threats made by a fer­vently anti-union employee acting on his own. Evidence of widespread threats which are made by neither the employer nor the union might, of course, cause the Board to resort to the further evidence of a representation vote.

We agree with those remarks. We have no evidence of widespread threats and thus we find that there is no basis on which to hold anything Ms. Hatina may have said against the union to the extent of requiring a confirmatory representation vote.

32. As to whether Ms. Miller's card should be discounted, we are of the view that the evi­dence is equivocal as to whether Ms. Hatina actually made a misrepresentation, or whether Ms. Miller took something which amounted to a statement that if employees did not sign for the union, there would be no union to protect the employees, as an indication that if she did not personally sign, she would not be protected while others would be. In cases such as this, where it is clear Ms. Miller did sign the card, the onus is on those who assert that the membership evidence is not reli­able. The fact that Ms. Hatina's version was not put to Ms. Miller, and the fact that Ms. Miller's own evidence on this is equivocal in the way described, leaves us without sufficient foundation to find on a balance of probabilities that a material misrepresentation was made.

33. Furthermore, we find Ms. Miller's evidence persuasive that what caused her to sign when she did was her reaction to the accounts of ex-employees and their belief that had there been a union in the restaurant, they might still have their jobs. That Ms. Miller later found manage­ment's explanation more compelling does not cast doubt on the validity of her card as of the appli­cation date.

34. The union also asked for costs of an adjournment. We are not convinced that this case is one that requires a departure from the Board's normal practice of not awarding costs, particu­larly when they were not requested as a condition of the adjournment.

35. We are persuaded that the allegations made do not cause us to doubt the validity of the membership evidence signed. Thus, an interim certificate is in order for the following bargaining unit:

all employees of JFS Holdings Ltd. (c.o.b. as My Cousins' Restaurant) in the City of Ottawa, save and except managers, persons above the rank of manager and payroll clerk, and pending resolution by the Board, excluding as well, assistant managers.

36. The parties are in dispute about a number of positions and have agreed to examina­tions. A Labour Relations Officer is hereby authorized to inquire into the duties and responsibili­ties of the individuals in the disputed positions and to report to the Board thereon.