United Steelworkers of America v. Market Drive Donuts Ltd., c.o.b. as Tim Horton Donuts
[1995] OLRB Rep. February 187
3798-94-R United Steelworkers of America, Applicant v. Market Drive Donuts Ltd., c.o.b. as Tim Horton Donuts, Responding Party v. Group of Employees, Objectors
BEFORE: S. Liang, Vice-Chair, and Board Members F. B. Reaume and R. R. Montague.
APPEARANCES: James Hayes, Mike Armstrong and John Aman for the applicant; C. E. Humphrey and Diego Sdao for the responding party; In grid Drabik, Jean Laufman, Lisa Shepherd, Jaime Sheppard, Norma Redding, Jennifer Altenburg and Alana Christie for the objectors.
DECISION OF THE BOARD (BOARD MEMBER F. B. REAUME DISSENTING IN PART); February 28, 1995
The name of the responding party in the title of proceedings is amended to read: "Market Drive Donuts Ltd., c.o.b. as Tim Horton Donuts".
This is an application for certification. At the hearing of this matter on February 27,
1995, the Board made the following oral ruling:
This is an application for certification. The Board scheduled a hearing to deal with outstanding issues arising out of a number of letters written by employees in this bargaining unit. These letters make allegations, amongst other things, of undue pressure and misrepresentation during the organizing drive. These employees, a number of whom appeared at the hearing and made representations to the Board through a representative, ask the Board to order a representation vote as a result of their allegations.
The union has made a motion to the Board that it not inquire further into these allegations because, even if the Board accepts the facts as stated as true, they do not make out a case for the relief requested.
The Board heard the representations of the parties on this motion.
Having considered the submissions and reviewed the material before us, the Board is satisfied that the union has established that it had, as of the time this application was made, the support of more than 55 per cent of the persons in the bargaining unit. The Board sees no reason to order a representation vote.
Many of the allegations contained in these letters relate to feelings by employees that they were pressured during the organizing drive. It is important to note that many of the persons who make this allegation were able to resist this pressure and did not actually join the union. The "pressure" consists in large part in being approached at work, at home, over several occasions. There is a suggestion that some of the persons, who are students, are particularly vulnerable. There are also allegations that people were given extravagant promises about what the union could do for them, which they have found out to be untrue.
Having carefully reviewed the allegations of undue pressure, we are satisfied that there is nothing more here than persistence, perhaps exaggerated salesmanship, or insensitivity. It falls short of what the Board would consider to be intimidation or coercion. As the Board's decisions have stated, the Board cannot hold people to artificial standards of social interaction. During an organizing campaign, it would not be a surprise if people feel peer pressure, and if people get worked up and end up offending others. It would also not be a surprise if some people make a decision that they later regret. But it is not unlawful to be rude or annoying. The Board has to assume that the average employee has some ability to make his or her own decision. And indeed, many of the people who have written to the Board have shown themselves very capable of making up their own minds.
Turning to the allegations about the return of union cards, the majority finds, Mr. Reaume dissenting, that there is no reason to discount membership evidence simply because employees asked for them back and were refused. This is well-established in the Board's cases. Whether or not the union has a practice of giving back cards is not relevant to our determination of whether, at the time of the application, the union has established through membership evidence that it has the requisite support. The Board does not take this union's evidence and admissions in Ken Bodnar Enterprises Inc., [1994] OLRB Rep. June 688, as a statement of law. As the Board indicated in Havlik Technologies Inc., [1992] OLRB Rep. Apr. 468, a request to have a card returned, which can be seen as a desire to revoke membership, is like any change of heart. It must be timely, in writing and signed by the employee concerned to have any effect on an application for certification.
The only two instances which may have caused the majority to inquire further relate to the allegations that employees were told they could ask for their cards to be returned before they signed their cards. We say may because we have some concerns as to whether a prima facie case has been established even with respect to these two instances. There is some doubt in our view as to whether it would have been reasonable for either employee involved to have accepted such a representation, assuming it was made, where the representation clearly comes from a rank and file employee who does not represent the voice of the union, and where there is no suggestion that the employees in question could not have investigated the matter further before relying on it.
We also have some doubt as to how clearly and precisely this allegation has been made out. However, even taking a generous view of the matter, and accepting that there is an allegation that two employees were told that they could join the union, change their minds and have their cards back, to induce them to sign, the majority finds that it is unnecessary for the Board to decide whether or not this constitutes a prima facie case such that we should inquire into this issue. Even if these events were established and the Board saw reason to discount the cards, on the circumstances alleged and all the material before us, there is nothing that would lead us to give less than full weight to any of the other cards. Even if these two cards are discounted, the union is still in a position to obtain automatic certification.
Accordingly, subject to the Board's usual second check, a certificate will be issued to the union.
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 agreement of the parties, the Board further finds that all employees of Market Drive Donuts Ltd., c.o.b. as Tim Horton Donuts in the Town of Milton, save and except supervisors, persons above the rank of supervisor and office and clerical staff, constitute a unit of employees of the responding party appropriate for collective bargaining.
The Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on January 27, 1995, the certification application date, had applied to become members of the applicant on or before that date.
DECISION OF BOARD MEMBER F. B. REAUME; February 28, 1995
With respect to the majority decision, I must dissent in part on the following basis.
It is clear that four employees indicated changing their minds and wanting their cards returned as alleged it was promised.
Of these four employees, two clearly indicate that they were promised this opportunity. There is however, no clear evidence or claim about what the other two employees many not have been told in this regard, nor whether or not they directly requested the union to return their respective cards.
As a result, I would have inquired into this issue in order to determine if there was a prima facie case of misrepresentation.
I am concerned that the above objectors may have been denied natural justice in this case as contemplated by the Divisional Court in the case of Fullers Restaurants, a decision dated March 11, 1980.
Furthermore, I believe that a secret ballot vote would have better served all parties in order to clearly determine majority support for the union or lack of same in the interest of good labour relations.