United Steelworkers of America v. Roy Ayranto Sales Limited, 1994 CanLII 9970

[1994] OLRB Rep. March 285

3443-93-R United Steelworkers of America, Applicant v. Roy Ayranto Sales Limited, Responding Party v. Group of Employees, Objectors

BEFORE: Janice Johnston, Vice-Chair.

APPEARANCES: P. Turtle, Marie Kelly, Wayne Fraser and Wes Dowsett for the applicant; Paul Wearing and Roy Ayranto for the responding party; C. J. Abbass on behalf of Tara Kavanagh, objector; Gina Mazara and Karen Kavanagh appeared on their own behalf, objectors.

DECISION OF THE BOARD; March 14, 1994

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

3. Having regard to the agreement of the parties, the Board is satisfied that the following bargaining unit constitutes a unit of employees of the responding party appropriate for collective bargaining.

all employees of Roy Ayranto Sales Limited in the City of Sudhury, save and except supervisors and persons above the rank of supervisor.

Clarity Note:

The parties agree that Ms Colleen Rinta exercises duties of a confidential nature pertaining to labour relations and is therefore excluded from the bargaining unit. The parties further agree that Mr. Edvin Rinta, Inventory Control, exercises managerial functions and is therefore excluded from the bargaining unit.

4. The Board is in receipt of correspondence from various individuals employed by the responding party, Roy Ayranto Sales Limited (the "employer" or the "company"), asserting improprieties in the manner in which the membership evidence was obtained by the applicant, the United Steelworkers of America ("Steelworkers" or the "union"). In response to a motion by the union, the Board at the outset of the hearing into these matters dismissed some of the allegations, as they did not make out a prima facie case for the remedies requested, assuming all of the particulars relied upon in support of the allegations to be true and provable. However, it was appropriate to inquire into the allegations contained in correspondence filed with the Board by Ms. Gina Mazara, Ms. Tara Kavanagh and Ms. Sara Lavigne and a hearing was held for the purposes of doing so.

5. Although somewhat lengthy, as these letters were introduced into evidence, it is helpful to set out the correspondence received by the Board from the three individuals pertaining to their allegations of improprieties on the part of the union. The letter received from Ms. Mazara reads as follows:

Jan 14/94

I Gina Mazara an employee at CI'C 105 was called Jan 6/94 at approx. 6:15 - 6.45 p.m. was told by the unidentified person who refused to give her name but I was 99% sure I recognized the voice as an ex-employee of CTS 105, and when I asked she said no but proceeded to give me not only the first name but the last name as well which lead me to believe it was the same person.

She then proceeded to tell that with out a union I would be not guaranteed a job in the new store which is to built this spring. I got very upset with this and told that the owner of the store has told us all we have a job in the new store. and that I didn't want or need a union to do anything for me because I believed the owner of the store would not lie to me. I also told her I would fight against any union who tried to come in.

Jan 9/94

One Sunday evening in and around 7 p.m. I received another phone call the voice sounded identical to the one I got Thursday Jan 6/94. but this time the person gave me her name and proceeded to tell me she wasn't the one who called. I didn't believe her so her fiancee who is an employee at Store CTC 105 took the phone and I hung up because I know he is involved in trying to get the union in.

Within 5 mins I received another call from her sister who is also an employee at CTC 105 to tell me it wasn't her sister who called. I was getting fed up so I said there is nothing left to say that is what I was led to believe, then I got another call shortly after I hung up from yet another wife of an employee to tell it was her who called but couldn't give me her name but I proceed to tell her who she was which agitated her and I then got so upset I hung up.

"Gina Mazara"

The letter received from Ms. Lavigne states:

January 24, 1994

Roy Ayranto Sales Limited

To Whom it may concern,

I am writing this letter because I was coerced into signing a union card and although I have now signed a petition against the union, I do not feel that justice has been done.

I am angered that I was blatanly[sic] lied to when I asked what I was signing as I am not in the habit of just signing anything. I am upset that on Thursday January 6th I was asked to enter an office by a fellow worker (whom the office did not belong to) and asked if I would sign a card "to show interest in a union, to get more information about the union". I signed as I am an open minded person and having never worked for a union, was interested in knowing more. I have always worked under the open door policy and always been able to talk to my employers if a problem arose. As a student and only working part time at Canadian Tire, I do not wish to have union dues taken off my pay cheque, and cannot see the advantages when not even guaranteed a vote.

I think someone should know that myself and maybe others were coerced into signing. Unfortunately, Mr. Ayranto's information about the union came out one day too late as I had already signed the card and the damage was done.

Last week, I received a letter from the Steelworkers which stated "that co-workers have been harassing and intimidating employees to sign a petition against the union" I was approached with honesty and openess[sic], which is a lot more than I can say when I was asked to enter an office and told "so and so is signing" to me that is coercion and intimidation, if not harassment. I was also told by a fellow coworker that although I had been lied to, not to say anything, because if management was to find out who signed, I would risk losing my job as I am a new employee. Is that not a threat?

Not only was I lied to, but betrayed and I am infuriated and upset. I only hope that others will write and if this union is approved I want people to know that it was not done fairly or honestly at that. Had I known the ramifications of that card I would not have signed.

Yours truly,

"Sara Lavigne"

The two letters from Ms. Kavanagh are as follows:

Jan 14, 1994

To Whom it may concern,

On Jan 5, 1994 at about 10:10 pm, I got a call from someone saying they represented the United Steel Workers of America. Asked if I ever thought of joining a Union. Then she proceeded to tell me if I wanted to be guaranted[sic] a job at the new store location I would have to join the Union. I then asked her who she was and she told me it was confidential. By this time I have reconized[sic] the voice as Tammy Pilon who does not work at the store any more but her fiancee does, Ernie Cecchetto. I told them I would think about it, hoping they would call me back so I could get there name.

This phone call bothered me, so the next day I called the Steel workers. I spoke with Wayne Fraser (Area Co-Ordinator Northeast Ontario 675-2461). He said he did not know who called and that he would find out and have that person call me back and apologize. I have never received that phone call.

"Tara Kavanagh"

Jan 17, 1994 File No. 3443-93-R

Roy Ayranto Sales Limited To Whom it may concern,

Fellow employees and I have petition against the United Steel Workers of America becoming are[sic] bargaining agent. We feel the way this Union was pushed on us is unfair and unconstitutal[sic].

It is my belief that all the employees of Canadian Tire Store #105. I now[sic] for a fact that some people were never contacted about a union trying to get in. Myself, I was called Jan 5, 1994, but was failed to be told about a meeting on Jan 6, 1994 at 9:00 pm. So were many other employees.

I believe they went after students and part-time employees. They being Kevin Lampinen and Ernie Cecchetto. Ernies girlfriend and Kevins wife did the calling. These to[sic] ladies are not employees of are[sic] store. The tactics these people were using in my opinion were wrong and unfair.

They would tell people if they did not sign they would not have a job in the new store. This is a lie because Mr. Ayranto assured people in a memo that everyone would be going to the new store. Also people were told they would get benifits[sic] and full-time jobs and raises. These are statements they have no right to make.

I feel most employees are scared to voice an opinion in case the union gets in, and their opinions are held against them.

We have sent in petitions on Jan 7, Jan 10, (two this day), Jan 11, Jan 12. With a total of 31 employees. Some have signed Union Cards. From my understanding the ones after the Jan 7, 1994 do not count. Unless we are notified of register on the same day, how are we to object to this application. It took a week to be notified and the Terminal date is the Jan. 18, 1994. Which leaves us four days to do anything and two of those days are Saturday and Sunday which everything is closed.

All we are asking for is to make an edcated [sic] vote. Let the employees now[sic] the pros and cons. This decission[sic] is to[sic] important to be forced on us. I feel that I am my best bargaining agent. I know what I am worth to any employee.

Yours truly

"Tara Kavanagh"

6. The Board in this case heard evidence from six witnesses over five days of hearing. For the purposes of resolving the issues before me it is not necessary to set out this evidence in detail or to set out the evidence given by all of the witnesses. In particular, I do not propose to set out the evidence of Mr. Wayne Fraser, Area Co-ordinator for the union.

7. In Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444 the Board's general practices and policies with regard to the treatment of membership evidence filed in an application for certification were outlined as follows:

8. The object in certification proceedings is to determine whether a majority of the employees in the bargaining unit found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their employment dealings with their employer. The Labour Relations Act is structured so that, except where a pre-hearing vote is requested, the certification of trade unions in this Province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of the application. The Board does not inquire into opinions of the virtues of trade union representations except as evidenced by the applicant's documentary evidence and any timely petitions filed in opposition to the application. In Ontario, as in most Canadian jurisdictions, the representation vote exists as a residual mechanism for ascertaining the wishes of the bargaining unit employees in cases where either the applicant trade union does not have the support of more than fifty-five percent of the bargaining unit employees, which is necessary for outright certification under section 7(2) of the Act (but does have the support of not less than forty-five percent of them), or where the circumstances are such that the Board sees fit to direct that a vote be taken notwithstanding that there is documentary evidence showing membership support in excess of fifty-five percent. The Board's discretion in that respect must be exercised in a manner which is consistent with the legislated primacy of membership evidence as the means by which employee wishes are to be ascertained.

9. Accordingly, the Board relies heavily upon the membership evidence filed by an applicant trade union. Because of the consequences of the reliance that the Board places on what is a form of hearsay evidence which, pursuant to section 111(1) of the Act, is not usually disclosed to the employer or employees opposing the application and is not usually subject to cross-examination, the Board requires a high standard of integrity and precision in the nature and quality of membership evidence. In order to protect the integrity of a certification process which places heavy reliance upon what is essentially hearsay evidence of support for an application for certification, the Board requires trade unions to be scrupulous in the manner in which they conduct their organizing campaigns and obtain membership evidence. Accordingly, the Board must consider any substantial allegations which, if proved, might cast doubt on the reliability of membership evidence. Evidence of improper conduct by a trade union or its supporters may raise sufficient doubt as to whether that documentary membership evidence filed in support of an application for certification is a reliable indicator of employee support for the applicant to cause the Board to resort to the confirmatory evidence of a representation vote notwithstanding that the membership evidence shows, on its face, the union to have the support of more than fifty-five percent of the employees (see Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331; St. Michael Shops of Canada Limited, [1979] OLRB Rep. April 346; The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611). In cases where improper conduct is established, the Board must assess the probable impact of that conduct on a reasonable employee having regard to the circumstances, including the nature of the particular workplace. The Board does not act as a censor of the social pressures which are commonly exerted for and against certification. As the Board noted in Alderbrook Industries Limited, supra:

10. 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 cemployer[sic], 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 indiscreet 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.

11. The Board in The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611 articulated the following test:

12. In all cases alleging improper trade union conduct the Board first begins by assessing the nature of the conduct -- the test being would it deter the reasonable employee? If the answer to this question is in the affirmative the Board must go on to assess the possible significance of the conduct and in this regard the identities of those persons involved are very important. Where the action impugned is that of a responsible official of the trade union a single indiscretion may cause the Board to conclude that it cannot place reliance on any of the evidence of membership submitted by the union. Where the irregularity relates to evidence of membership procured by a person of lesser rank in the union organization, the actual cards involved may be disallowed and the weight to be given to the remaining evidence of membership will depend on the nature of the irregularity and the extent to which the objectionable practice was resorted to in the signing of members. (See Webster Air Equipment Company Ltd. 58 CLLC para. 18,110; Walter E. Seick of Canada Ltd. [1964] OLRB Rep. June p. 138; Linhaven Home for the Aged [1962] OLRB Rep. May 66.)

13. The Board heard evidence from Ms. Tara Kavanagh and Ms. Gina Mazara concerning the allegations set out in their correspondence. Their verbal testimony was consistent with their letters. I found them both to be credible and candid witnesses and their evidence was not challenged in any material fashion by the union. I accept their evidence that they were both upset and concerned with regard to the telephone calls they received. Ms. Mazara indicated that she was initially frightened by what she was being told and later became angry. Their evidence makes it clear that the individuals who made the telephone calls were either employees, spouses of employees or former employees of the company. The individuals were known by Ms. Mazara and Ms. Kavanagh to be union supporters and involved in the union's organizational drive. Ms. Kavanagh knew that they did not represent the Steelworkers. In addition, both Ms. Kavanagh and Ms. Mazara knew that the individuals did not have the authority to carry out the threats made to their job security. As Ms. Mazara put it in her evidence "I said its not true, you can't do that. We were told by Mr. Ayranto, the owner - he said we were all guaranteed a job. I told them they had no right to say that -..". When asked in cross-examination why she felt that way, Ms. Mazara responded, "They're not my boss, Mr. Ayranto is". Both individuals also made it clear in their letters to the Board that they felt that the individuals who telephoned them did not have the right to make any statements concerning their jobs. They knew that the individuals could not carry out any threats as they did not have the authority or ability to do so.

14. The other significant fact in this case is that neither Ms. Mazara nor Ms. Kavanagh signed a union card as a result of the telephone calls they received.

15. There is no evidence that similar comments or threats to job security were made to any other individuals or that anyone signed a union membership card as a result of such a threat. There is no basis therefore to conclude that the recruiting tactics employed with regard to Ms. Mazara and Ms. Kavanagh were widespread. The evidence does not substantiate the existence of a "climate of fear" that might reasonably call into question the true wishes of the employees (see Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331). In addition, there is no reason to conclude that even if similar comments had been made to other employees that they would have been taken seriously. I have no reason to believe that any other employee would have reacted any differently than Ms. Mazara and Ms. Kavanagh did. This is not to say that the Board condones ill-advised and inappropriate comments such as were made by the union's supporters in this case. However, it is obvious that the comments did not have the desired impact as it was known that they did not have the power to enforce them. Had these comments been made by full-time union organizers, the result may have been different.

16. Therefore, I conclude that the allegations raised by Ms. Mazara and Ms. Kavanagh do not in any way impugn or cast doubt upon the membership evidence submitted by the union in this case.

17. Turning now to the concerns expressed by Ms. Sara Lavigne, it is helpful to start by setting out the document that she signed on January 6, 1993. It reads as follows:

UNITED STEELWORKERS

Membership ----- Ontario

YES, I apply for and accept membership in the

United Steelworkers of America.

________________________________________ Date: ______19

SIGNATURE OF APPLICANT

14. In her letter to the Board Ms. Lavigne states that she was "coerced" into signing a union card. There is no evidence to support any allegation of coercion. The issue with regard to the card signed by Ms. Lavigne is quite simple. She takes the position that she did not think she was joining the Steelworkers union when she signed the membership card. She signed the card, to use her words, "to show interest in the union, to get more information about the union". She testified that at the time she signed the card that is what she was told. She testified that she did not intend to join the union and had no idea that by signing the membership card she was doing so. In cross-examination Ms. Lavigne was asked questions concerning the information she was hoping to get and she indicated that she wanted information about what the union was all about. When asked why she had not questioned the person who gave her the card before signing the card, she indicated she didn't know. At the time of the application, Ms. Lavigne was attending Laurentian University and working part-time for the company. She testified that when she signed the card she asked what it was, as in her words, "I just don't sign anything". In cross-examination Ms. Lavigne admitted that she read the card before she signed it.

15. After having carefully reviewed the evidence of Ms. Lavigne I cannot accept her assertion that she did not realize what she was signing. She indicated that she read the card prior to signing it and it is extremely straight- forward. In the circumstances it is simply not believable and would stretch reality to conclude that Ms. Lavigne did not know that she was signing an application for membership in the Steelworkers.

16. The Board heard conflicting evidence concerning who was actually present when Ms. Lavigne signed the union membership card. Ms. Lavigne testified that she was alone with another employee named Shawn Dempsey. Mr. Dempsey and Mr. Steve Ross, another employee, testified that they were both present when Ms. Lavigne signed the membership card. Mr. Ross signed the back of Ms. Lavigne's card as the "collector" of the card. In addition to Ms. Lavigne's card Mr. Ross signed as the collector of ten other cards. Mr. Ross was called as a witness and was questioned regarding the collection of the other cards. Based on that testimony I have no reason to question the validity of those additional ten cards submitted in support of the application for certification.

17. Neither Ms. Lavigne nor Mr. Ross were particularly credible witnesses concerning the meeting at which Ms. Lavigne signed her card. Ms. Lavigne was less than truthful with the Board concerning her understanding of what she was signing and Mr. Ross was evasive, vague and seemed to have a selective memory concerning the meeting. However, Mr. Dempsey was a credible witness and the evidence of Mr. Ross and Mr. Dempsey was essentially consistent and corroborative. Therefore, on balance, I prefer and accept the evidence of Mr. Ross and Mr. Dempsey that they were both present when Ms. Lavigne signed the membership card and that Mr. Ross then took the card. There is no reason therefore to not rely on the membership card submitted to the Board on behalf of Ms. Lavigne.

18. In final argument, counsel on behalf of the objecting employees referred the Board to numerous cases dealing with issues concerning the sufficiency of what used to be the Board's Form Nine (Declaration Concerning Membership Documents). Counsel argued that the Board in the case before me had reason to question the sufficiency of the Form A-4 (Declaration Verifying Membership Evidence) filed with the membership evidence and urged me to accept the reasoning of the jurisprudence and direct a vote. Given the conclusions reached above the union has complied with the requirements of the Form A-4 declaration and I see no reason to find it deficient.

19. The union has demonstrated membership support in excess of fifty-five per cent of the employees of the employer as of January 7, 1994, the certification application date. A certificate shall therefore issue for the following bargaining unit:

all employees of Roy Ayranto Sales Limited in the City of Sudhury, save and except supervisors and persons above the rank of supervisor.

Clarity Note:

The parties agree that Ms Colleen Rinta exercises duties of a confidential nature pertaining to labour relations and is therefore excluded from the bargaining unit. The parties further agree that Mr. Edvin Rinta, Inventory Control, exercises managerial functions and is therefore excluded from the bargaining unit.