[1994] OLRB Rep. September 1242
4171-93-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Reynolds-Lemmerz Industries, Responding Party v. Group of Employees, Objectors
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.
APPEARANCES: Stephen Krashinsky, Ra] Dhaliwal, Catherine Gilbert, Bruce Davidson and Dan MacPherson for the applicant; Philip J. Wolfenden, Jim Gray and Ray MacPherson for the responding party.
DECISION OF THE BOARD September 1, 1994
- This is the continuation of an application for certification.
Background
By decision dated March 28, 1994, the applicant was certified on an interim basis for a unit of the responding party's employees. The precise scope of the unit was the subject of disagreement between the parties, and a Labour Relations Officer was appointed to inquire into and report to the Board on the duties and responsibilities, and the community of interest with the rest of the bargaining unit, of persons employed in certain disputed classifications. The parties waived their right to a formal hearing.
Subsequent to the March 28 decision, the Board received a letter from an employee, copied to the employer, suggesting that a fraudulent membership card may have been submitted on his behalf. In correspondence dated April 5, 1994, the employer referred the Board to the employee's letter and submitted that if the contents of the letter were true, the application should be dismissed or, at the very least, a vote should be held. The employer's letter also made reference to other correspondence it believed the Board may have received from employees indicating that the union was guilty of "threats, intimidation, coercion and lies" in its organizing campaign. It was the employer's view that a hearing should be held to deal with these issues. By letter of the same date, the union objected to the employer's request and directed the Board's attention to a section 91 complaint it had filed on March 28, 1994, alleging that the employer had engaged in improper communications with employees following the waiver process and the release of the count, and had encouraged them to come forward with allegations that cards had been signed under duress and as a result of false promises.
Over the course of the next few weeks, the Board received numerous representations from employees suggesting that the union may have filed fraudulent membership evidence on their behalf. Also received were: a section 91 complaint filed by the employer complaining of certain conduct by the union (principally the filing of fraudulent membership evidence) and requesting the rescission of the interim certificate; a request for reconsideration by the employer of the March 28, 1994 decision based on essentially the same grounds as the section 91 complaint and the April 5 letter; a request from the employer seeking the precise level of membership support in the bargaining unit reflecting the possible outcomes of the matters referred to the Board Officer; and a request by the union for the Board to determine certain issues related to the proper scope of the Officer's examinations.
By decision dated May 2, 1994, the Board scheduled a hearing for May 17 to deal with these various matters. The parties were advised that the Board had conducted its usual investigation into the allegations of fraud and that one such allegation, that made by Jeffrey Platt, required a hearing. Thereafter, the union was provided by the Board with sample signatures of Mr. Platt to enable it to undertake a handwriting comparison with the signature on the membership card. Over the objection of the union, the employer was also provided with a copy of Mr. Platt's membership card to enable it to undertake its own handwriting analysis. Subpoenas were then issued to Mr. Platt, the card collector and the Form A-4 declarant.
At the commencement of the May 17 hearing, the Board was advised by the parties that they had agreed to deal first with the fraud allegation, and that the resolution of that issue might go some way towards disposing of the other issues. The union then advised the Board that the preliminary report prepared by its handwriting expert supported the conclusion that the same person signed the membership card as signed the other documents bearing Mr. Platt's name. In order for the expert to complete her report, however, original signatures would need to be reviewed. Accordingly, the union requested, and was provided by Mr. Platt with, certain original documents (e.g., driver's licence). With leave of the Board, and with no determination having been made as to whether the Board would receive such evidence, the hearing was adjourned to May 18 to enable the expert to complete her report. At that stage, the employer indicated that it would not be attempting to call any expert handwriting evidence of its own.
When the hearing resumed on May 18, 1994, counsel for the union provided the Board, the employer, and Mr. Platt with a copy of the expert's report which confirmed her preliminary findings. After giving the employer and Mr. Platt the opportunity to review the expert's report, and when the hearing resumed at 11 o'clock, counsel for the union suggested that Mr. Platt might wish to meet with a Labour Relations Officer to consider whether it was still his intention to pursue the fraud allegation and, thereby, "perjure himself before the Board". Mr. Platt and the employer agreed to this procedure and the hearing adjourned briefly while Mr. Platt met with a Senior Board Officer. Shortly thereafter, Mr. Platt advised the Board verbally and in writing that the fraud allegation was withdrawn.
At the conclusion of this process, the Board provided the employer with the information requested concerning the precise levels of membership support in the bargaining unit under the different scenarios, and the parties agreed to withdraw their respective section 91 complaints. The employer also agreed to withdraw its request for reconsideration of the interim certificate. Before accepting those agreements, however, the Board advised the parties that one further non-sign allegation remained to be investigated and that a decision of the Board would not issue until that investigation had been completed.
On May 25, 1994, the Board issued a decision advising the parties that its investigation had been completed. The decision also recorded the parties' withdrawal of the various matters. On June 27, 1994, at the employer's request, the Board issued a further decision confirming that the specific fraud allegation mentioned by the Board at the May 18 hearing had been investigated and had been found to be without substance.
Since then, the Board has received another letter from the employer, this time requesting a vote in the bargaining unit under section 8(3) of the Labour Relations Act. Before reproducing the employer's letter and dealing with that request, the Board will address another issue that remains outstanding.
The Union's Motion Concerning the Scone of the Officer's Examinations
On May 18, 1994, at the conclusion of the matters indicated above, the Board heard the parties' arguments on the issue raised by the union concerning the proper scope of the Officer's examinations. Relying on an agreement reached between the parties in an earlier application for certification, the union took the position that the employer was attempting to "gerrymander" the bargaining unit.
In Board File #3588-92-R, an application for certification by the union dated March 9,
1993 was dismissed on May 20, 1993 following a vote. The Board's decision directing the vote reflected the parties' agreement on the status of persons occupying the classifications now in dispute, and is directly at odds with the employer's current position. The union argued that it was entitled to rely on that agreement for organizing purposes in the present campaign and that the employer ought not to be permitted to resile from it. According to the union, either or both of the doctrines of res judicata or issue estoppel apply.
As the parties well know, the Board takes seriously agreements reached in certification and other proceedings. The process of agreement is vital not only to the furthering of harmonious labour relations between the parties, but to the day-to-day functioning of the Board. For these reasons the Board looks with considerable disfavour on a party that seeks to withdraw from an agreement reached in good faith with another party to Board proceedings. In the present case, however, it is not apparent to us that the employer has entered into any agreement, or made any representations, upon which the union could reasonably rely in these proceedings. Nor has there been any adjudication of the issues raised that would give rise to the doctrines of res judicata or issue estoppel.
The employer's agreement to the bargaining unit description in the earlier proceedings was no doubt motivated by a variety of factors including, perhaps, strategic ones. We would be surprised if the union's agreement was not similarly motivated. However, absent some understanding that the bargaining unit description agreed to in the earlier proceedings was intended to bind the parties in any future application, any reliance the union placed on that agreement was entirely at its peril. Moreover, as was pointed out by the Board at the hearing, it is difficult to see what prejudice the union has suffered as a result of its alleged reliance on the earlier agreement, or what "gerrymandering" has occurred, given that the union has already been certified.
On that basis, the Board will not restrict its inquiry into the scope of the appropriate bargaining unit as requested by the union.
The Employer's Request for a Vote under [section 8(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l2/latest/rso-1990-c-l2.html)
- The employer's request for a vote under section 8(3) of the Labour Relations Act is contained in a letter dated July 6, 1994, which states:
"Please accept this letter as a formal request by the Respondent for the Board to exercise its discretion pursuant to s.8(3) of the Ontario Labour Relations Act to direct a representation vote in circumstances where the Applicant has filed membership evidence of more than 55% of the employees in the bargaining unit. Our reasons for this request are outlined below:
- Barely over the 55% Level of Support
The Applicant has conducted an intense campaign of over five and one half years (5 1/2) in duration. During that period of time, at least one (1) other union was actively involved in organizing the employees of the Respondent. In May of 1993, the Applicant finally achieved sufficient membership support for a secret ballot vote. The results of that vote showed a significant majority of the employees at Reynolds-Lemmerz were not in favour of being represented by the CAW. Between the date of that vote, and the date of the second Application for Certification, the Respondent is unaware of any events that would have caused a significant shift in the attitude of its employees. In fact, the only significant change was an increase in the intensity of the organizing efforts of the union. Nevertheless, until shortly before the new Applicant, all indications were that the union had achieved little success in improving its membership position. The Respondent was therefore not surprised that union support was barely over the minimum requirements of the Ontario Labour Relations Act for automatic certification. In fact, one (1) card would have made the difference between automatic certification and a secret ballot vote after this five and one half (5 1/2) year campaign.
- Fraudulent Card Allegations
A number of allegations of fraudulent cards were filed by employees with the Board. In fact, a hearing was convened at the Board to consider the card of one (1) individual, but under what he considered to be unusual and intense pressure at the Board, he withdrew his allegation at the last minute. The Board advised the parties at that hearing that an additional card had yet to be investigated, and neither of the parties have received communication from the Board with respect to its determination on this matter. In addition, we are aware, as is the Board, that one (1) card was signed by an individual who was not in the bargaining unit at the time of signature, and who was advised, and in fact did, put a falsified job title on the card. Despite that fact, the Board has accepted that card apparently on the basis the individual was in the bargaining unit at the time the Application was filed. That does not change the fact the card was fraudulently completed at the time of signature.
Furthermore, discussions as recently as a week and one half ago both within and outside the plant continue to be regular and consistent that at least twenty (20) fraudulent cards were filed with the Application. In fact, Ms. Kim McPherson, a well know [sic] supporter and organizer for the union advised a fellow employee, Lina Sheffer, as described above.
- Appropriate Communication With Employees was Prevented
We are referencing the Interim Application the Union filed. Therein, the Applicant complained that a Notice from the Respondent to its employees was contrary to the Ontario Labour Relations Act. In that notice the Respondent had attempted to explain the significantly revised provisions of the Ontario Labour Relations Act as a result of Bill 40 in which employees would no longer be permitted to change their minds about membership following the filing of an Application for Certification. As the Board knows, prior to Bill 40, employees were clearly advised in the Notice of Application for certification that they had a right to file a Statement of Desire in opposition to the union should they have changed their mind following the signing of a card. The Applicant argued, and that panel of the Board accepted, that this notice was inappropriate. The Board went on to order the removal of these notices, and thereafter, the Respondent was precluded from explaining the Board process well in advance of the Application date.
Prior to the filing of the Application for Certification, a number of employees attempted to retrieve their cards from the Applicant and were refused. Additionally, we are advised the Board received a number of Statements of Desire indicating persons who had previously joined the union no longer wished to remain members of the union. However, those statements were received following the date of the Application, and were therefore refused by the Board. In our respectful submission, all of those Statements of Desire would have been properly filed but for the above described decision which precluded the Respondent from explaining the current state of the law to its employees and their legal rights.
In these circumstances, it is respectfully submitted the only appropriate course of action is for the Board to provide the employees of the Respondent with a fair opportunity to express their true wishes through a secret ballot vote, and we would therefore ask the Board to direct such a vote at the earliest possible time."
The Board is also in receipt of a response by the union to the employer's letter, and a reply from
the employer to the union's response, neither of which need to be reproduced.
- section 8(3) of the Labour Relations Act states:
8.-(3) The Board may direct that a representation vote be taken if it is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date.
This provision enables the Board to direct the holding of a representation vote notwithstanding that an application for certification is accompanied by documentary evidence of membership signed by more than fifty-five per cent of the employees in the bargaining unit. Given the policy choice in favour of accepting signed membership cards as evidence of employee wishes and the high standard of integrity demanded of such evidence, section 8(3) is treated as an exception to the rule of "automatic certification". Accordingly, the Board will only direct a vote under this provision for compelling reasons and on the basis of cogent evidence, neither of which exist in the present case.
The concerns set out in the employer's request appear to be essentially the same as those which animated its April 5 letter, its section 91 complaint and its request for reconsideration of the interim certificate - the last two of which were withdrawn together with the union's section 91 complaint. The letter contains unparticularized and imprecise allegations of fraud, without any suggestion as to whether they are different from the ones already investigated by the Board, or withdrawn by the employer, or if they are different, why they could not have been raised previously.
With respect to the allegation concerning Lina Sheffer, the Board wishes to draw the parties' attention to the following correspondence, purportedly from Ms. Sheffer, directed to the Registrar of the Board, dated July 11, 1994:
"I understand Mr. Phillip Wolfenden representing Reynolds Lemmerz, has used my name and that of Kim McPherson, in his argument regarding the possibility of fraudulent cards being submitted to the Labour Board in C.A.W. 's attempt to organize the Collingwood operation.
I want to go on record with the Board and apologize for anything I have said in social conversation to fellow employees, that may have lead to this allegation. I especially want to clarify relayed comments from a conversation with Kim McPherson. In retrospect, I may have drawn the inference of a possibility of fraudulent cards, however I had no real basis to make such a deduction. I have not had the opportunity to speak to Kim McPherson prior to writing this letter, however, it is my intention to contact her and apologize for involving her in what may appear to some people as an anti-union movement.
In conclusion, I am respectfully requesting that my name be removed from any list of potential witnesses regarding Union application cards and I have no evidence to offer the Labour Board."
The employer's request also makes mention of certain alleged refusals by the union to return signed membership cards to employees, and the filing of certain untimely petitions. In the latter case, the suggestion is that employees were, in effect, prevented from filing timely petitions through the combined effect of section 8(4) of the Labour Relations Act and a Board decision in the earlier proceedings finding certain of the employer's communications with employees to have been unlawful. Again, and quite apart from the absence of particularity with respect to these allegations and the fact that they are being raised by the employer only after the withdrawal of the other matters, these representations do not provide a basis for the exercise of the Board's discretion under section 8(3). Absent, perhaps, some representation on the part of the union that signed membership cards would be returned upon request, the union is under no obligation to surrender this evidence. Employees who wish to revoke their support for the union are permitted to advise the Board of their desire prior to the filing of the application for certification. The fact that an earlier attempt by the employer to inform employees of this right failed for other reasons does not taint the membership evidence in this case or provide the basis for a vote under section 8(3).
The employer's further assertion that "one (1) card would have made the difference between automatic certification and a secret ballot vote" also does not advance its case. In Ontario, unlike a number of other jurisdictions in Canada, the level of support required for automatic certification is set at fifty-five per cent, rather than a bare majority. The additional five per cent is intended to provide employers with some assurance, in the absence of a ballot box, that a majority of employees do, in fact, wish to be represented by a trade union. In this case, that level of support was achieved even assuming that all of the employer's challenges to the bargaining unit ultimately prove successful.
On that basis, and in light of the foregoing, the employer's request for a vote under section 8(3) is denied.
Revocation of Appointment of Labour Relations Officer
It appears to the Board that the parties have made little progress towards the resolution of the bargaining unit configuration issues since the date of the Officer's appointment. Accordingly, and to expedite the resolution of this matter, the Board hereby revokes the appointment of the Labour Relations Officer and directs the Registrar to schedule a hearing before a panel of the Board to address the issues that had been referred to the Officer. Not later than two weeks prior to the commencement of that hearing, the employer is required to file with the Board and the union particulars of its position as to the inclusion or exclusion of the members of the disputed classifications, including the details of their job functions and the basis for the employer's request. Within one week of the receipt of this material, the union must file a detailed response to the employer's position. The employer will also be responsible for ensuring the attendance of a representative of the disputed classifications on the first day of hearing, and is directed to advise the Board and the union in a timely way as to the identity of this individual.
This matter is referred to the Registrar.