[1995] OLRB Rep. July 970
0513-95-R IWA-Canada, Local 2693, Applicant v. Hill's Greenhouse Ltd, Responding Party v. Louise Myllyaho, Intervenor
BEFORE: K. G. 0'Neil, Vice-Chair, and Board Members Orval R. McGuire and R. R. Montague.
APPEARANCES: Sean Fitzpatrick and Carol Fawcett for the applicant; J. D. Shanks and Herman Van Duyn for the responding party; Peter Hollinger, Louise Myllyaho and Dave Wassenaar for the intervenor.
DECISION OF THE BOARD; July 24, 1995
This is an application for certification. This decision deals with allegations about collection of the membership evidence by the applicant union (IWA) and the employer's assertion that determination of the application should be deferred until the fall when there will be a larger complement of workers, based on the seasonal nature of the employer's greenhouse business.
The employer had originally maintained that one employee should be excluded pursuant to the Agricultural Labour Relations Act, 1994, section 2.1 because she was employed in horticulture, as opposed to the rest of the employees who are agreed to be employed in silviculture, to which the Labour Relations Act applies. However, the employer withdrew that objection at the outset of the hearing and thus the parties were agreed on all the issues pertaining to the certification except the two mentioned above.
The factual basis for the issue about the seasonal nature of the business is largely undisputed, and is derived mostly from the evidence of Herman Van Duyn, one of the employer's principals, while the facts concerning the allegations about the collection of membership evidence were the subject of some conflicting evidence. Where necessary we have indicated our resolution of the conflicts in the evidence.
The Seasonal Issue
The employer's operation is a greenhouse near Thunder Bay where at least 8 million evergreen seedlings a year are grown for reforestation, as well as some poinsettias for Christmas sales.
The application date was May 1 at a time when there were 13 members of the bargaining unit. The usual pattern of employment of non-management people is as follows:
January - 1 or 2 people to prepare the greenhouse for planting which includes for example moving tables around. If repairs are needed more may be called in occasionally.
February - 10 to 12 people to do an early round of mechanical seeding of trees for a few days of two shifts, as the seeding needs to be done in a concentrated time so that harvest can be at a concentrated time.
March - 15 people for a week or more of double shifts to do the biggest portion of the seeding.
April - If necessary anywhere from 4 to 24 people (depending on how good the seed was) are called in to do thinning over the course of a week or two. Then approximately six people do weeding part-time.
May - Early in May approximately 8 people work for less than two weeks moving the February and March trees outside. Then another 8 people or so do weeding and thinning for less than two weeks.
June - 26 people are called in to do the second round of seeding for less than two weeks of two shifts.
July - Up to 15 people may work in July, on finishing up seeding thinning, weeding or maintenance, for up to 10 days but generally it is just a growing month. Also a few clean up the green houses to prepare for August extraction.
August - About 20 people pull and box seedlings for about one week for one client who does summer planting. The amount of work varies according to the size of the client's planting crew and can vary both in length of time and number of employees called in.
September - None on silviculture for most of the month unless there is carryover from the August packing, but a about 6 work on poinsettias for about 14 days and two work on setting out trees in the latter part of the month for a few days.
October to December - About 40 people for extracting trees, pulling seedlings and boxing them for wintering over in a freezer. This lasts 6.5 to 10 weeks, 8 being the most frequent duration. By mid-December, things are wrapped up except for two people to sell poinsettias until Christmas. Then the cycle starts over again in January.
There are up to 55 people on the call-in list who are called in more or less by seniority, although there is no formal system. The employer tries to give the small amount of work that cuts across most of the months of the year to the most senior people who may work 20 weeks of the year. October to December is the only period of the year where people are employed on a daily basis. There are not many people who only work the harvest; most have some work other times of the year as well. The return rate is quite high; the call-in list has been fairly stable for a number of years. One of the union's witnesses, Ethel Kemp referred in evidence to 13 or 14 people who she thought were generally recognized as permanent part-time.
Employer Counsel referred to a case involving a summer amusement park Island of Bob-Lo, [1970] OLRB Rep. May 211 and one involving graduate students, Queen's University, [1982] OLRB Rep. May 753 where the Board took into account the seasonal nature of the work, and urged us to do the same.
The employer argues that the above facts should be dealt with as build-up as there is a real likelihood of an increased workforce in a reasonable period of time which will be more than twice as big as the workforce on the application date. They ask for a vote to be held on November 1, in the middle of the extraction process.
It is argued that this industry is like canning and tobacco where there is a relatively low labour force most of the year and a dramatic increase in the fall. The Board has referred in some cases to an exception to its general practice of not taking into account seasonal variations for canning and tobacco. Counsel suggests the reason for this is that the workforce is not representative during most of the year as it is part-time, and intermittent. Only at harvest time is there a full complement of employees working full-time.
By contrast the union argues that many workplaces have variations of a seasonal nature and the Board's practice has been to not take them into account. It is argued that build-up is a concept developed by the Board to deal with new operations or ones that are about to expand an existing operation, and not to deal with seasonal variations. The pattern in the evidence is a regular yearly pattern, not a one-time expansion or build-up. The union's main argument is that the more permanent employees should not have to wait for those with more temporary employment. Counsel refers to Filken Food Services Ltd., [1981] OLRB Rep. Dec. 1771.
Summarizing the evidence about the number of employees, union counsel says that the operation employs between 5 and 15 workers most of the year, with two weeks in June and August when it goes over 20 and 6 to 8 weeks at harvest time when the number is between 35 and 40. Counsel submits it is a stable workforce for the most part, and the number of employees on the list with the application of the "30-30 rule", 13 employees, is quite representative of the usual workforce. The union sees no reason to deviate from the Board's usual practice, but argues that in the alternative, if the 50% rule from the build-up cases is applied, the only time when thirteen does not represent 50% is harvest time. The union thinks harvest time is not the most representative period of the year, because it is exceptional in terms of number of employees and number of days of work in a month. May may not be perfect, it is said, but it is more representative than November.
Counsel argues that to accept the employer's view would be to deprive the more permanent employees of the right to bargain collectively, or at best defer it for months. He distinguishes the cases cited by the employer saying in those cases it was the large number of employees who would be deprived of their right to have their say, while here it is the more permanent employees who would not have their say.
We have considered this matter in light of the Board's jurisprudence and are not of the view that this is a case for the application of the build-up principle or that it is otherwise premature. This is not a case of a new startup or an expansion. The regular nature of the employment pattern is characterized by intermittent part-time work. However, both employer and union witnesses observed that there is a core of regular people who are apt to get more work over the course of the year. A union witness estimated this group at thirteen without challenge, which is the number of people in the proposed bargaining unit at the time of application.
If one takes the maximum number of employees employed in each month of the year and averages it out on a monthly basis, the average number of employees is just over 20. We are of the view that bringing an application at a time when there are 13 people in the proposed bargaining unit is sufficiently representative, even if there were a requirement that the bargaining unit be representative of the year round workforce.
However, there has been no such general requirement articulated in the legislation or the Board's jurisprudence. Unusual fact situations have been dealt with on their merits, such as Island of Bob-Lo, a termination application, and Queens University which involved an application for a pre-hearing vote in a bargaining unit with high turnover, cited above. But in general, the Board has consistently said it will not take seasonal variations into account. We are of the view that the facts of this case do not compel a different result. The facts in Island of Bob-Lo and Queen's University are quite different and the Board was not of the view in those cases that the composition of the bargaining unit was representative. By contrast, we are satisfied that there is a sufficiently representative composition as of the date of application.
We find the remarks of the Board in Filken Food Services Ltd., cited above, germane to this case as well (although we are not here concerned with a student bargaining unit, but one that is analogous in that it is part-time):
... the Board has consistently refused to take into account seasonal fluctuations in the work force, from the point of view of either "build-up" or bargaining-unit configuration, outside of certain historically-recognized industries such as canning and tobacco-harvesting (see Universal Cooler, [1967] OLRB Rep. Sept. 546; Melnor Manufacturing Ltd., [1976] OLRB Rep. May 215). [sic] The Board in most instances, in other words, does not take into account the normal ebb and flow of the work force. That is all that is occurring in the present case, albeit for the first time because this is the first year the respondent will be operating on a "seasonal" basis.
The present complement of 6 part-time employees is, as the applicant points out in fact representative of the bargaining unit, even with seasonal fluctuation, for approximately 10 months of every year. The Board is not of the view that the desire of a "permanent" complement of part-time employees for collective bargaining (even recognizing that such employees may themselves be "students") ought to be deferred in a case such as this to await the determination of the wishes of additional students employed only during the school vacation period. The Board therefore declines to exercise its discretion under section 7 of The Labour Relations Act to defer further processing of the present application.
(It is to be noted that Melnor Manufacturing is actually reported at [1969] OLRB Rep. March 1288 and the above noted citation is for Spramotor Ltd. [1976] OLRB Rep. May 215).
- We are of a similar view here. And we are not of the view that the analogy to tobacco and canning, to the extent that those industries are argued to have been an exception to this principle, warrants a different result. We are not, in any event, asked by the employer to do here what the tobacco and canning exception as articulated in Melnor Manufacturing Limited, [1969] OLRB Rep. March 1288, would mean. The application of that exception would mean including seasonal workers in a bargaining unit where the application was brought in season and excluding when brought out of season. We are asked not to exclude seasonal workers, but to defer the application.
The allegations about the collection of membership evidence
The objecting employees allege intimidation and coercion in the collection of membership evidence and urge the Board to find that all of the membership evidence is suspect and ought to be disregarded, or at the very least a confirmatory representation vote should be ordered.
The first allegation involves David Wassennaar who it is said signed a union card but told the person who collected it not to submit it unless he called. It is said that the card was held in trust pending permission to file it, which was never given, and therefore the card should not be counted. The second involves Mike Hall who it is alleged was told he would get no work unless he signed a card - that he would lose his seniority. It was argued that this amounts to a fundamental material misrepresentation about job security and should lead the Board to discount the membership evidence.
Mr. Wassennaar testified that he was called at home by one of the other employees, Susan Wolframe, on a Sunday night and asked to come over to her house - about a 1/2 mile away from his home. When he arrived, another employee Carol Fawcett, was there who told him they wanted to start a union and asked him if he would be willing to join. They discussed why employees wanted a union and its effect on Mr. Wassennaar. After being there about a half hour, he started to sign. When he made a mistake, the first card was ripped up and he started over. By the time the second card was put in front of him, he was having second thoughts. By his own testimony, Mr. Wassennaar "signed anyway". He received a book and pamphlet to read. When asked by his own counsel whether he said anything, he answered, "I was sort of hoping they would keep it. I said I'd give them them a call back. I said I was a bit weary of signing it." A bit later in his testimony he said that he told her he would give her a call back with his answer about what to do with it. This was varied slightly in further direct examination to "I just said I wanted to get back to her." After he said this Carol nodded, but he did not know if she was answering him or just nodding. When asked what his understanding was, he answered "I was hoping she'd keep it until I phoned her to let her know". He said he did not tell her that in "exact words" but in a sense by saying I'll get back to you with what I want done. He testified that when he left the card was on the table; there is no suggestion that he could not have asked for it back or taken it.
On cross-examination, Mr. Wassennaar said he had made no statement that night as to why he would be opposed to the union and that neither Ms. Wolframe nor Ms. Fawcett said they would keep the card. Further, he was two houses away from Ms. Wolframe's visiting, later that night, and did not go back to her house to get the card. After thinking about it at home and reading the material, and without consulting anyone else, he says he "sort of made up his mind the union wasn't right". He testified he tried calling Ms. Wolframe twice that night and once or twice the next morning letting it ring three or four times, but there was no answer. There is no evidence that he tried to call Ms. Fawcett.
The next day, he stopped in at work to see what was going on in the next couple of weeks, whether there would be loading work for him to do. He did not look for or ask around for Carol or Susan because he did not see their vehicles in the parking lot. He figured they weren't there because they had said they were going into town to send the cards away. It appears that Ms. Wolframe was at work that day. However, he was hoping to get his card back or find out how to do so. He found out later that the cards had already been shipped to Toronto, that they were no longer in Thunder Bay as he had hoped.
Mike Hall testified that at the end of March or the beginning of April he was approached on a Sunday by Ethel Kemp, Carol Fawcett and Susan Wolframe who came to his house at a time when there were also three other employees of the greenhouse there. They explained that they were trying to get the union in and asked him if he wanted to sign. He says they told him that it would likely benefit him if he signed, and that if he wasn't to sign he could lose his seniority. When asked by his own counsel what Ms. Kemp specifically said to him, he said "I could lose my seniority if I didn't sign, I could have lost my job for all I know I'm not exactly sure". He says she told him that another employee could get ahead of him again, presumably in seniority, which could affect the amount of work he was getting. He was worried about his ability to pay his bills, and the possibility that he would lose his seniority or job. He thought that by signing a card he could stay ahead on the seniority list. When he was asked if he asked Ms. Kemp if he would have more seniority than Dave Wassennaar if the union came in, he said that she wouldn't be able to tell him anyway; because "she's not the boss" and did not know what he had in the way of seniority. He acknowledged on cross-examination that he might not have been paying attention at some points.
Mr. Hall said it seemed like they were in a bit of a rush and he had to get hold of a friend for them. He provided a telephone number and address so the women could contact another employee about the union.
Ethel Kemp testified that she spoke within Mike Hall's hearing to another of the employees in the room and told her that they wanted to go for seniority and told her of the reasons why they were seeking a union. According to her account Mr. Hall was quite positive about the idea of a union and offered to help contact others and spoke of his dissatisfaction with what he saw as favouritism. Ms. Kemp says what she said about seniority was that she thought it should go back to when you signed on. She denies saying he would lose his seniority unless he signed and says he did not ask her about this, that he just asked for a card to sign.
Counsel for the objecting employees maintained that Mr. Wassennaar's evidence showed that he changed his mind before the application date, and his viva voce evidence of this fact is the best evidence of the subject, better than documentary evidence. Counsel submits Mr. Wassennaar was pressured by the situation he was presented with, in which he did not know he was going to be discussing the union and he was being told the cards had to go in the next day. Counsel submits that we should find that he indicated he would give a call back if they could use the card, and that the card was held in trust until such a call. Counsel urged us to find that his unsuccessful efforts to contact Ms. Wolframe afterwards were simply consistent with his personality, and not indicative of a lack of interest in contacting her suggested by union counsel. He had not given unequivocal authorization; he had attached a condition and he wanted to withdraw his card. Applying an objective test, counsel argues that the only conclusion a reasonable person could have drawn was that she was not to use it unless he called.
As for the evidence in regards to Mike Hall he suggested that Ethel Kemp was an evasive witness and his client should be believed in preference to her, and that therefore we should find a material misrepresentation had been made.
The Board was urged to order a vote by counsel for the objecting employees, either in the exercise of our general discretion to do so, or as a result of the elimination of the two cards from the count. Quoting from Can-Eng Metal Treating Limited, [1988] OLRB Rep. May 444 we were urged to find that a fundamental misrepresentation about a central issue, such as loss of seniority leading to job loss had been made, which should call the membership evidence into question and a vote should be ordered. For the sake of fostering a peaceable atmosphere in the workplace, we were urged to order a vote so that workers who would be at work at other times of the year could express their wishes.
By contrast, union counsel argued that there is no evidence that the union made any promise to hold the card or give it back, and there is no evidence he asked for it back. And there is no allegation of intimidation or coercion in respect of Mr. Wassennaar. His evidence is really that he hoped they would not use it.
As to the sequence with Mr. Hall, union counsel asks us to accept Ms. Kemp's evidence and to find that there was no misrepresentation, and at most a misunderstanding. He argued that it was not the Board's practice to disregard membership evidence on the basis of a misunderstanding where there was no material misrepresentation. Quoting Royal Guard, [1994] OLRB Rep. Aug. 1057 and Lutheran Nursing Home, [1994] Oct. 1362, counsel argued the evidence should be cogent, i.e. forcible and convincing to lead the Board to question the membership evidence.
We have considered the evidence and argument on this issue, and are of the view that the facts are not of a nature that would cause us to call the membership evidence into question. In Davis Distributing Limited, [1994] OLRB Rep. Sept. 1190, the Board recently concisely summarized its approach to such allegations in the following passage:
In deciding whether improper conduct by a union organizer casts doubt on the voluntariness of membership evidence, the Board is conscious of the heavy reliance that it places on membership evidence filed by a trade union in certification applications. In order to protect the integrity of a certification process which depends on such evidence, the Board takes care to ensure that where improper conduct is alleged, it is satisfied that it does not cast doubt on the reliability of that evidence: see, for example, Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444.
At the same time, the Board is also concerned that it not impose artificial standards of behaviour that are contrary to normal human interaction. The Board has stated that it does not act as a censor of the social pressures which are common to an organizing campaign on the part of those who either support or oppose the union. It would not be a surprise if some employees find the choice a difficult one, if some employees find it harder than others to resist peer pressure from one side or another, or if some employees make a decision which they later regret. It would not be a surprise to find that some statements made during an organizing drive turn out to be wrong, are rude or annoying, or cause distress. The Board assumes that the average employee engaged in a debate about the merits of unionization with other employees has a certain level of ability to make up his or her own mind and to act in accordance with his or her own volition.
In order to remain realistic about the social pressures that accompany an organizing drive, the Board has stated that it will treat as qualitatively different improper conduct on the part of union officials and improper conduct by a fellow employee. Further, the Board distinguishes between physical threats and threats to job security, and comments which do not contain those elements either directly or by implication: see The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611 and Dupont of Canada Ltd., [1961] OLRB Rep. Jan. 360. The Board has also distinguished between misrepresentations which are not fundamental in that they do not relate to the effect or purpose of the membership evidence, and those that do: see Masters Construction Ltd., [1988] OLRB Rep. Feb. 162.
In this context, the Board ultimately looks to whether the conduct at issue would deter the reasonable employee, in other words, whether the reasonable employee faced with those circumstances would be able to make his or her own decision about union representation.
In our view, whatever Mr. Wassennaar's hopes or understanding were, there was no representation made by the union organizers or any understanding which would make it improper for the union to have submitted the card. His evidence about what was actually said between him and the two employee organizers indicates that he did not clearly communicate to them any condition on the use of the card, which clearly says that he requests and accepts membership in the union. On counsel's point that the viva voce evidence should be preferred over the documentary evidence, section 8(6) of the Act allows the Board only to consider change of heart evidence filed in writing on or before the application date.
As for Mr. Hall, the totality of the evidence, in our view does not establish on a balance of probabilities that Ms. Kemp said that Mr. Hall would lose his seniority if he did not sign for the union. Ms. Kemp had a clear explanation of what she said about seniority and why. Mr. Hall's explanation was less clear, as he explained in his own words that he was not really sure what seniority would mean for him. The assertion that he was somehow intimidated into signing is also somewhat inconsistent with his assisting the organizers, on his own evidence, by supplying phone information, and addresses to help them contact other workers. At worst, on the totality of the evidence we find this to have been a misunderstanding about Ms. Kemp's allusion to the seniority going back to when "you sign on", which she meant to refer to the date of hire, not the date one signed for the union. In any event, and most importantly, Mr. Hall was quite clear that he did not think Ms. Kemp was in a position to know what would happen to his seniority and thus we conclude that he was able to evaluate the statements made by a fellow employee and make up his own mind. In these circumstances, we do not find that a misrepresentation which would cause us to doubt the membership evidence was made by Ms. Kemp.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
Having regard to the findings above and the documentary evidence before it, the Board is satisfied that more than fifty-five percent of the employees of the responding party in the bargaining unit on May 1, 1995, the certification application date, had applied to become members on or before that date. These are not circumstances in which we find it appropriate to exercise our discretion to order a vote.
Given the parties' agreement on all the other necessary elements to this application, a certificate will issue to the applicant for the following bargaining unit, on which the parties agreed at the hearing:
all employees of Hill's Greenhouses Ltd. in the Municipality of Oliver, save and except manager, supervisors, Office and Sales Staff and persons above the rank of Supervisor.