[1994] OLRB Rep. March 267
0468-93-R; 1150-93-U; 2243-93-U IWA - Canada, Applicant v. Madawaska Hardwood Flooring Inc., Responding Party; Stephen Perry, Kevin Cruise, Lorrie Gauthier, Marcel Mathieu, Ken Rekowski, Applicants v. IWA - Canada, Responding Party v. Madawaska Hardwood Flooring Inc., Intervenor
BEFORE: Ken Petryshen, Vice-Chair, and Board Members R. W. Pirrie and H. Peacock.
DECISION OF THE BOARD; March 8, 1994
The three applications referred to above came on for hearing on October 18, 1993. Since the IWA-Canada was prepared to adjourn its section 91 application, the Board proceeded to deal only with the application for reconsideration and the section 91 application filed by certain employees.
In a decision dated November 15, 1993, the Board provided the parties with the following decision:
The Board has before it an application for reconsideration by Madawaska Hardwood Flooring Inc. ("Madawaska") in Board File No. 0468-93-R. The Board also has before it a section 91 application made by certain employees of Madawaska alleging certain violations of the Labour Relations Act.
During four days of hearing beginning on October 18, 1993, the Board entertained the evidence and representations of the parties relating to these two applications. Having regard to the evidence and the representations, the Board finds it appropriate to dismiss the application for reconsideration and the section 91 application made by certain employees. Our reasons for this decision will follow in due course.
Our reasons for the above decision are set out below.
To appreciate the nature of the proceedings, it is useful to refer to some of the history concerning the certification application. On May 10, 1993, the IWA-Canada filed an application for certification for a unit of employees employed by Madawaska Hardwood Flooring Inc. ("Madawaska"). On May 31, 1993, the parties to the certification application agreed to waive the hearing and the Board (differently constituted) certified IWA-Canada by decision dated May 31,1993 which was sent to the parties with a covering letter dated June 2,1993. On June 4, 1993, the Board received by facsimile petitions signed by employees at Madawaska as well as individual statements signed by certain employees expressing opposition to IWA-Canada and containing certain allegations relating to the collection of membership evidence. The Registrar responded by letter of June 10, 1993 and, in effect, advised that the Board was unable to consider the petitions that were filed late and made reference to section 91 of the Labour Relations Act. On June 30, 1993, certain employees filed a section 91 application in which they complained about the manner in which Rick Criuse, a fellow employee, collected membership evidence. This was followed on August 3, 1993 by Madawaska's request for reconsideration of the decision issuing the certificate to IWA-Canada. In making its reconsideration request, Madawaska relied on the allegations made by the employees who filed the section 91 application as well as some additional allegations against Mr. Criuse.
In support of its application for reconsideration, Madawaska called seven witnesses to testify. Mr. Capieski, an employee who represented the applicants in the section 91 application, did not call any evidence. The IWA-Canada called two witnesses. In making its factual determinations, the Board has carefully reviewed all of the evidence and the parties' submissions relating thereto.
With the exception of his own membership card, Mr. Criuse signed as collector on all of the applications for membership filed in support of this application. He collected the membership evidence on May 7 and 8, 1993. A number of persons were called by Madawaska to testify about what Criuse said when he sought their support. Criuse also testified about these conversations and there is some material differences between what he said and the evidence of the Madawaska witnesses. By using the usual factors to resolve conflicting evidence, the Board is satisfied that Criuse was a credible witness and prefers the evidence he gave where his evidence conflicted in a material way with the evidence of other witnesses. By saying we believe Criuse and found his evidence more probable in the circumstances does not mean that we found the Madawaska witnesses to be untruthful. Rather, it is more likely that they misinterpreted what they were told.
K. Rekowski testified that Criuse told him that signing a card only represented an expression of interest in the union and that the issue would come down to a vote. Criuse stated that he told employees, including Rekowski, that he was going for automatic certification and that if he did not obtain sufficient support there would be a vote. Rekowski was the only witness to testify that Criuse told him there would ultimately be a vote. The Board has difficulty in accepting Rekowski's evidence on this point and finds it probable that Rekowski misunderstood what Criuse told him. The Board is satisfied that Criuse did not misrepresent the certification and card signing process.
Steven Perry testified that Criuse told him that he might not be protected if he did not sign a union card. Perry also stated that Criuse told him he was not leaving until he obtained his signature. According to both Perry and Criuse, Criuse was concerned that if Perry did not sign, Perry would tell other persons about Criuse's role which might impact on Criuses' employment. Criuse testified that he told employees that they would pay union dues even if they did not sign and that the union would still help them. G. McGregor confirmed that Criuse told her she would pay dues even if she did not sign and that the union would still have to represent her. In reviewing Perry's evidence, the Board cannot be satisfied that Criuse told Perry that his failure to sign might affect the way in which the union would represent him. Nor do we find Criuse's comment that he would not leave until he had obtained Perry's signature conduct which would unduly influence a reasonable employee.
Criuse approached L. Gauthier at her home on May 8, 1993 and asked her to support the union. P. Murdock, Gauthier's fiancee, who was present for most of the conversation, was called to testify about the conversation since L. Gauthier had passed away prior to the hearing. Murdock stated that Criuse told Gauthier that if she did not sign, she would not have all the benefits of the union. Criuse denied saying any such thing and we accept his evidence in this regard.
A number of employees testified that Criuse advised them that he had signed most of the employees in the unit and that they subsequently discovered this to be untrue. Rekowski said Criuse told him he had signed a hundred percent. McGregor and Jodda testified that Criuse told them he had signed ninety percent of the employees. Mathieu testified that Criuse told him that everyone signed and he was the last one. Murdock stated that he and Gauthier were told all of the employees had signed except for two. Criuse testified that he did not advise any employee what level of support there was for the union at any point in time. He said he often did tell persons that every one he had approached had signed if this was true. By the time he got to Gauthier's, he could only say that every one he approached had signed expect for two. In his evidence, Perry confirmed that Criuse told him that all of the persons he had contacted before him had signed. Upon review of all of the evidence given relating to this allegation of misrepresentation, the Board prefers the evidence of Criuse. We are satisfied that Criuse only talked to employees in terms of who he had approached and not in terms of the entire bargaining unit.
Two witnesses testified that Criuse made comments about the owner selling the business. McGregor said Criuse told her the owner was selling the plant and if the plant was sold the new owner would be required to respect the contract and the employees would not lose their jobs. Murdock testified that Criuse told Gauthier that Madawaska was to be sold, that there was a potential buyer and that employees could then lose their jobs without a union. The owner, Mr. Staples, testified he had no plans to sell the company. Criuse testified that he had heard from another employee that Mr. Staples may have a potential buyer for the plant. Criuse stated that he told some employees that if the plant was sold and the union was not there, the new owner did not have to recall all of the employees. Criuse also told employees that any new owner would have to take over a union contract if a sale occurred within a year of the plant closing. The statements by Criuse about the plant closing constitutes salesmanship and not false representations that would cause us to have some concern about the way in which Criuse obtained membership evidence. If any employee had any concerns regarding this aspect of the sales pitch, they could have easily made inquiries on their own to ascertain their validity.
In summary, the Board finds that Mr. Criuse did not contravene the Act when he approached employees to obtain membership evidence, nor did he act in any way which would cause us to conclude that the membership evidence that was filed was unreliable. It is for these reasons that the Board dismissed Madawaska's application for reconsideration and the section 91 application filed by employees.
Having regard to the circumstances, the IWA - Canada application in Board File No. 2243-93-U is withdrawn with leave of the Board.