[1995] OLRB Rep. March 250
1551-94-R United Steelworkers of America, Applicant v. Consumers Distributing, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair.
APPEARANCES: Brian Shell, Mark Rowlinson, Brando Paris and Heather Alden for the applicant; Michael Horan, Terry Olmstead, Rosanne Angotti and Charles Marful for the responding party.
DECISION OF THE BOARD; March 10, 1995
This is an application for certification.
On September 26, 1994, the Board issued a "bottom line" decision rejecting the respondent's allegations of impropriety in the applicant's organizing campaign and certifying the applicant on the basis of the documentary evidence of membership filed with the Board. These are the reasons for the Board's decision, including certain determinations made at the outset of the proceedings.
"PRELIMINARY" MATTERS
I. Configuration of the Panel
This case was originally scheduled to be heard by a panel consisting of the undersigned and Board Members W. H. Wightman and J. Redshaw. During the course of the parties' opening submissions, however, it became apparent that the number of days required to hear the case would exceed the number of consecutive sitting days available to the Board Members. As an application for certification, the case falls within the Board's "fast track" scheduling system and, as indicated in the notice of hearing sent to the parties, is scheduled to be heard on consecutive days, from Monday to Thursday, until complete. Accordingly, at a break in the proceedings, and prior to the calling of any evidence, the matter was reviewed with the Registrar. As a result of this review, it was determined that there were no other Board Members available to commence the case that day, or at any time that week, and continue with it until its completion on an expedited basis. I was then assigned to hear the case alone, and the parties were so advised following the break. The reason given for the change in panel was "scheduling difficulties".
Shortly thereafter, counsel for the union made a request for the inclusion of Board Members on the panel, regardless of any delays this might create in the scheduling of the case. After counsel for the employer signified his client's agreement with this request, I adjourned the hearing to review the matter with the Chair.
Section 104(12) of the Act states in part:
104.-(12) Despite subsections (9), (10) and (11), the chair may sit alone or may authorize a vice-chair to sit alone in any of the following circumstances to hear and determine a matter and to exercise all the powers of the Board when doing so:
- In the case of a matter respecting section 11.1, 69, 70, 73.1, 73.2 or 92.1, subsection 92.2(1) or (6) or section 94, 95, 126 or 137,
i. if the chair considers it advisable to do so, or
ii. if the parties consent.
- In the case of any other proceeding,
i. if the chair considers that the possibility of undue delay or other prejudice to a party makes it appropriate to do so, or
ii. if the parties consent.
It was the view of the Chair that this was an appropriate case for the exercise of her discretion in accordance with sub-paragraph 2(i) of this provision.
At the stage of proceedings at which the Chair's decision was made, the parties were contemplating calling as many as 15-20 witnesses over almost as many hearing days. Given the prior commitment of Board Members to other proceedings, and the usual exigencies of the scheduling process, assembling a three-member panel in these circumstances could have meant a hearing that would take months, rather than weeks, to complete. In labour relations matters, that kind of delay, occasioned solely by the scheduling process, is undesirable; in the context of certification proceedings, it is untenable.
In Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural implement Workers Union of Canada (CA W-Canada) et al [1993] 2 S.C.R., Cory J. recently commented on the importance of expedition in the resolution of labour relations disputes, as follows:
Unresolved disputes fester and spread the infection of discontent. They cry out for resolution. Disputes in the field of labour relations are particularly sensitive. Work is an essential ingredient in the lives of most Canadians. Labour disputes deal with a wide variety of work related problems. They pertain to wages and benefits, to working conditions, hours of work, overtime, job classification and seniority. Many of the issues are emotional and volatile. If these disputes are not resolved quickly and finally they can lead to frustration, hostility and violence. Both the members of the work force and management have every right to expect that their differences will be, as they should, settled expeditiously. Further, the provision of goods and services in our complex society can be seriously disrupted by long running labour disputes and strikes. Thus society as a whole, as well as the parties, has an interest in their prompt resolution.
Legislators have recognized the importance of speedy determination of labour disputes. By the enactment of labour codes they have sought to provide a mechanism for a fair, just and speedy conclusion of the issues. The legislators have gone further and attempted to insulate the decisions of the various labour boards, tribunals and arbitrators from review by the courts. In earlier times, the courts resisted legislative attempts to restrict their ability to review the decisions of various labour boards. However, over a period of time they have accepted the vital importance of labour tribunals and adopted a more restrained approach in reviewing their decisions.
Expressed in the context of arbitral proceedings, these comments apply with even greater force to certification applications where the very right to representation hangs in the balance.
It is an unhappy fact of our system of labour relations that organizing campaigns are frequently divisive affairs, pitting not only employer against union but employee against employee. Persons who have exercised their statutory rights by expressing their wishes in favour of unionization fear retaliation from the employer, and employees who have opted not to do so may be ostracized, or worse, by their colleagues. In the short run at least, the result is an often pathologically divided workplace which is sharply at odds with certain of the purposes of the Act (e.g. the promotion of "harmonious labour relations" set out in section 2.1). It is for reasons such as these that the Legislature made a number of recent amendments to the Act which are designed to ensure expedition in the resolution of disputes (see e.g. sections 92.2 and 104(14)), and which include section 104(12).
The nature of the discretion exercised by the Chair in accordance with this provision was discussed in Robert Dumeah, [1994] OLRB Rep. June 655, as follows:
The statutory scheme set out in subsections 104(12) and (12.1) of the Act grants to the Chair (or Alternate Chair) a discretion in determining the composition of the Board in a particular proceeding. The exercise of this discretion is an executive act, made on a purely administrative basis.
Some of the reasons for this broad administrative discretion were outlined in the following passage:
There may be occasions where scheduling problems or other difficulties in constituting a tripartite panel can lead to undue delay or other prejudice to a party. One purpose of these new legislative provisions was to deal with this problem, to provide the Chair with the ability to ensure that Board hearings proceeded expeditiously, consistent with the truism that "labour relations delayed is labour relations denied". It would be inconsistent with that purpose if the Chair had to afford an opportunity to parties to a proceeding to participate in the decision as to whether a single Vice-Chair sits alone or not. Parties would have to be given adequate notice of the decision of the Chair that she might exercise her discretion, a meaningful opportunity to participate in the process, and arguably, reasons for the Chair's eventual decision. To read the statutory scheme as requiring such a process would undermine the very purpose of the scheme. Hearings would inevitably be further delayed if the Chair considered exercising her powers to reduce delay.
Section 104(12)1 limits the Chair's discretion to where the "Chair considers it advisable". This is a general, unrestricted discretion which in essence depends upon the Chair's opinion. And it is only the "possibility" of undue delay or prejudice which need be present under section 104(12)2. The powers in this subsection are thus dependent, if at all, upon the opinion of the Chair as to whether a possibility of undue delay or other prejudice is present. It is the mere possibility that triggers section 104(12)2, and it is solely the Chair who is to consider this possibility.
When the particular language is considered, in the context of the overall scheme for constituting panels, and in light of the purpose of the Board and of section 104(12), the decision exercised by the Chair, pursuant to section 104(12), is properly characterized as purely administrative in nature. The Chair need not provide an opportunity to the parties to the proceeding to participate in this decision, nor is the Chair required to issue written reasons justifying the exercise of her discretion. To require either of these actions would effectively defeat the very purpose of the statutory amendment. Accordingly, I ruled at the hearing that the case would proceed before me.
In the circumstances of this case, it was the "possibility of undue delay" that gave rise to the exercise of the Chair's discretion and the determination that I would hear the case alone. Accordingly, following the break, I advised the parties that their request was denied.
II. Notice to Employees
- Prior to the reconfiguration of the panel, counsel for the employer raised an issue concerning notice to employees of the hearing. Counsel directed our attention to the following letter to the Board dated August 8, 1994:
To Whom it May Concern;
On July 29, 1994, a meeting was held at Mark & Larry's (3482 Lawrence Avenue East, Scarborough) to discuss the possibility of introducing a union at the Consumers Distributing store (629 Markham Road, Scarborough).
The meeting, chaired by Brando Paris, Organizer of United Steelworkers of America, was convened at 5:00p.m. and ended at 6:00p.m.
During this one-hour period, we were given a 3" x 5" (approximately) card to complete and sign (name, address, telephone number, company name, job function and date).
Mr. Paris told us that once these cards were signed, he "would get things rolling." We were not made aware that these were union pledge cards and that signing these cards would constitute a vote for the union. We were under the impression that by signing, we were expressing interest in a union, only.
We fully expected that more information would be made available to us at a future date, i.e. other meetings, literature, etc.
We feel we were mislead and tricked into this situation.
We do not wish to become members of the United Steelworkers of America union or any other union.
Consumers Distributing has been a good and fair employer and we enjoy a good relationship with our management and co-workers.
We, the undersigned, have read and agree with the contents of this letter.
This letter was signed by 13 people purporting to be employees of the respondent. There are 19 employees in the agreed-upon bargaining unit. The letter was received by the Board on August 9, 1994, and is shown as having been copied to the employer's District Manager for Toronto East, Mario Curutti.
- Counsel for the employer advised the Board that only two of the 13 signatories to the letter were in attendance at the hearing. Counsel suggested that the reason the others may not have been present was because they had been told by the Board that they could not participate. Counsel referred us to the following letter from the Registrar of the Board to Christine Kimberley, the employee whose name appeared on the return address of the August 8, 1994 letter:
August 10, 1994
Receipt is acknowledged of statements of desire dated August 8, 1994 with respect to the above-noted application for certification
Section 8(4) of the Labour Relations Act states:
8.-(4) The Board shall not consider the following evidence if it is filed or presented after the certification application date:
- Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by
a trade union.
Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.
Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by re-applying for membership or by otherwise expressing a desire to be represented by a trade union.
The application date was July 29, 1994 and your statements of desire were sent by Courier on August 9, 1994 and received at the Board on August 9, 1994 after the application filing date. The Board is therefore unable to consider your statements of desire in connection with this application.
(emphasis added)
Implicit in counsel's submission was the suggestion that the Board adjourn the hearing to enable further notice to be provided to employees of the hearing and their right to participate.
After hearing the submissions of counsel for the union on this issue, the three member panel of the Board determined that sufficient notice of the hearing and the right to participate had been provided to employees through the posting of the Board's "green sheets" and through subsequent correspondence from the Board. These sheets, which are posted in the workplace, advise employees of: the application for certification; the bargaining unit applied for; the need for any evidence of withdrawal or re-affirmation of support for the trade union to have been filed by the application date; and the requirement to attend at the hearing in support of such evidence. The green sheets also state:
If you wish to participate in these proceedings with respect to an issue other than a petition or re-affirmation, you must file with the Board by [Date] a written statement which sets out your name(s), address and phone number, the file number at the top of this notice, the names of the union and the employer, why you want to participate and what you want to say to the Board. If you file such a statement, that statement may be sent to the other parties in this case, and your name(s) may be disclosed to them.
If you do not file a statement as set out in paragraph 4 or 5, or if the Board determines that your statement will not affect the result of the application, the Board may decide the application without further notice to you.
If you file a statement as set out in paragraph 4 or 5, an L.R.O. may contact you to discuss the issues in the application. You must also attend the L.R.O. meeting and the hearing, if any, or the Board may decide the application without further notice to you and without considering any document you may have filed.
A meeting with a Labour Relations Officer will take place in the Board Officers, 3rd Floor, 400 University Avenue, Toronto, Ontario on [Date], at [Time] for the purpose of trying to settle all or part of this case if the case is not already settled by that date.
The hearing of the application will take place in the "Board Room", 5th Floor, 400 University Avenue, Toronto, Ontario, on [Date] at ['I'ime] if the case is not already settled by that date, and it will continue on consecutive days from Monday to Thursday, excluding Fridays and holidays until completed or as the Board otherwise directs.
THE PURPOSE OF THE HEARING, if a hearing is held, is to hear the evidence and representations of the parties with respect to this application.
The panel was of the view that the Registrar had properly advised employees that the "statement of desire" not to be represented by the applicant contained in the August 8 letter could not be considered by the Board as it was filed after the application date. To the extent that the August 8 letter may also have expressed a wish to participate with respect to any other issue, the Board was satisfied that the notice provided by the green sheets had not been undermined by the Registrar's letter. That letter dealt solely with the kinds of evidence referred to in section 8(4), and neither informed employees of the right to make submissions on other issues nor purported to deprive employees of that right. Further, and as indicated by the file, the Registrar continued to communicate with Ms. Kimberley even after the August 10 letter, advising her, for example, of rescheduled hearing dates and correspondence received from other parties.
As a practical matter, it was also apparent to the Board that the representations contained in the employees' August 8 letter formed at least part of the subject matter of the employer's case and, to that end, the employer appeared to have intended to call most, if not all, of the employees as witnesses. In addition, at the time the notice issue was raised, neither of the two employees in attendance at the hearing signified any independent wish to participate in the proceedings; nor, for that matter, did Christine Kimberley when she was later called to testify.
Accordingly, the Board ruled that it would not adjourn the hearing to provide further notice to the employees.
III. The Relevance of the Respondent's "Managerial Evidence"
At the conclusion of these matters, the applicant made a preliminary motion that I should not hear the evidence the employer intended to call with respect to the alleged involvement of certain managerial employees in the applicant's organizing campaign. It was the position of the applicant that the facts as pleaded by the employer did not disclose a prima facie case for the application of section 13 of the Act and could not otherwise cast doubt on the quality of the applicant's membership evidence.
After considering the parties' submissions on this issue, and after reviewing the pleadings and the relevant case law, I delivered the following oral ruling at the start of the second day of hearing:
"The parties agree that the respondent's case, as disclosed by the pleadings, contains essentially two sets of allegations: those which relate to the activities of two former assistant managers and a former manager (principally Brian Cheong) on behalf of the union; and those which relate to statements made to employees by a paid union organizer - Brando Paris. The respondent argues that the first set of allegations discloses that the union is one to which section 13 of the Act applies and/or that the voluntariness of the membership evidence is otherwise in doubt. The allegations relating to Mr. Paris are said to disclose material misrepresentations in the gathering of the membership evidence. On either basis, the respondent submits, the application must be dismissed.
As a preliminary matter, the applicant has asked the Board to determine that the allegations relating to the activities of the managerial employees do not make out a prima facie case for the relief requested. The union submits that the only issue is the application of section 13, and that the facts as pleaded do not disclose the mischief to which that provision is directed.
Based upon a review of the pleadings and having regard to the submissions of the parties, the Board has determined that it will not inquire into those aspects of the case which relate to the involvement of the managerial employees.
Dealing first with section 13, ii is and has been the law for some time now that this provision will not apply unless the managerial employees can be said to be acting on behalf of management or, perhaps, can reasonably have been perceived to have been doing so by the employees whose support they were soliciting. It is clear both from the pleadings and from the respondent's submissions that neither of these circumstances obtain in the present case.
Beyond that, whether or not the involvement of one or more managerial employees in support of a trade union organizing campaign will call into question the voluntariness of the membership evidence turns on whether those individuals exercised any undue or coercive influence over employees to obtain their signatures on membership cards. It is no longer assumed, if it ever was, that the mere involvement of managerial employees in an organizing campaign on behalf of the trade union casts doubt on the quality of the membership evidence, where those employees are acting contrary to the interests of the employer. In this case, the pleadings do not disclose any such undue influence, nor have any employees made such representations.
Accordingly, the Board will restrict its inquiry in this matter to those allegations which relate to the activities of, and the representations made by, Mr. Paris."
To expand upon this ruling somewhat, it was evident both from the pleadings and from the submissions of counsel for the employer that the so-called "managers" were, to the knowledge of employees, acting contrary to the interests of the employer. Paragraph 10 of the employer's response states:
The organizing of employees in the bargaining unit has taken place with the assistance and support of a current and former manager and assistant manager of the Respondent for the announced purpose of getting back at the employer. Employees have been encouraged to sign membership cards for that purpose by persons of influence who are excluded from collective bargaining under Section 1(3) of the Labour Relations Act.
[emphasis added]
In answer to a subsequent request for particulars by the applicant, the respondent expanded upon this paragraph, in part, as follows:
(c) At the time of the meeting at Mark & Larry's [at which all of the cards were signed], the employees were upset that Ms. Moody and Mr. Cheong had left the employ of the Respondent. At the meeting, both Mr. Cheong and Ms. Moody to employees to sign membership cards and told them that doing so would make the Respondent "mad" (sic).
(d) employees were encouraged to sign membership cards to get the Respondent "mad" by Ms. Moody, Mr. Cheong and Ms. Cheong at the dates, times, and places outlined in this Appendix A.
[material in parenthesis added]
Ms. Cheong is Mr. Cheong's wife and the manager of another Consumers Distributing store. Mr. Cheong's employment with the company came to an end two days before the meeting at which the cards were signed. Ms. Moody was an assistant manager who had left the employ of the company some months previously.
As the Board's case law makes clear, these are not the kind of circumstances to which section 13 of the Act applies. This provision states:
The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or other administration or has contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code or the Canadian Charter of Rights and Freedoms.
The purpose of this provision was described in Addidas Textile (Canada) Ltd., [1980] OLRB Rep. May 639, as follows:
. . . The purpose of the section, in keeping with the scheme of the Act, is to maintain the necessary arm's length relationship between employers on the one hand, and trade unions, as representatives of employees, on the other. In applying section [13], the Board has drawn a distinction between support tendered by the employer, either directly or through persons holding managerial positions within his organization, and support tendered by persons who occupy management positions but act on their own initiative against the employer's interest in support of the interests of the employees. Although a question may arise in these latter circumstances as to the voluntariness of the membership evidence~ the necessary arm's length relationship between employer and trade union may not be undermined in a manner which requires the automatic application of the section [13] bar. In rejecting the automatic application of section [13] in these circumstances (as in the Leamington Hospital case, [1973] OLRB Rep. June 376) the Board stated at para. 14 of the Children's Aid Society case, supra:
…….The Board recognizes that in the modern organizational setting interests of individual persons deemed to be managerial are not necessarily coincidental with those of the employer. If the evidence establishes that such persons acted on behalf or in the interests of the employer then undoubtedly the section [13] bar would apply. If, however, the evidence establishes that the persons were acting not on behalf of the employer but contrary to the wishes and interests of the employer (see Air Liquide case (1964 CLLC 16,002) then it cannot be said that the employer has participated contrary to section [13], or section [65) for that matter. Similarly, if the evidence establishes that the disputed persons have been acting in their self interest rather than on behalf of or in the interest of the employer, then again section [13] should not be activated.
See also Waldorf Astoria Hotel, [1981] OLRB Rep. Sept. 1308.
- Further, there was nothing in the facts as pleaded (and counsel pointed to nothing more substantial during oral submissions) to suggest that the "managerial" personnel had made any threats, or engaged in any coercive, or unduly influential conduct that might cause the Board to question the voluntariness of the signed membership evidence. Although the initial response to the applications contained a number of bald allegations of "threats", "intimidation" and "coercion” of employees by Mr. Cheong, the applicant's subsequent request for particulars generated, in relevant part, the following response:
Paragraph 11
The Respondent is aware that from August 5, 1994 to August 7, 1994, [i.e. after the cards were signed and the application submitted] Mr. Cheong telephoned at least the following employees at their homes: Laura Paddon, Dimitra Tzortzis, Leah Lambrakis and Doug Harrison. These telephone calls were made at various times throughout those days and evenings. On August 6, 1993, Mr. Cheong called both Leah Lambrakis and Dimitra Tzortzis as frequently as three times. On August 7, 1994, Mr. Cheong called Dimitra Tzortzis on five occasions. The Respondent has no knowledge of the exact time that these telephone calls were made. In these telephone conversations, Mr. Cheong told the employees not to back out of the union and warned them not to mention that he was involved in the union organizing. The employees were left with the impression that if Mr. Cheong's name was mentioned in connection with the organizing activities he could go to jail.
[material in parenthesis added]
Assuming, but without deciding, that the activity described in this paragraph may have caused the Board to doubt the validity of the signed membership evidence had it occurred prior to the signatures having been obtained or the application having been filed, these were not the facts in this case. The conduct in question is alleged to have occurred well after the employees signed the cards and the application had been submitted. It could not, therefore, have been said to compromise the integrity of the signed membership evidence (see e.g. Innovative Wood Products, [1978] OLRB Rep. Feb. 161 and Royalguard Vinyl Co., [1994] OLRB Rep. Aug. 1057).
In circumstances where the involvement of managerial employees in a trade union's organizing campaign is not sufficient to trigger the section 13 "bar" to certification, the Board's case law makes clear that "undue influence" cannot be presumed but must be established by "substantial evidence". This is no doubt in recognition of the fact that employees will have little to fear from managers who are seen to be campaigning against the perceived interests of their employer; nor, for that matter will, they have much to gain from managers who are about to be, or have in fact been, fired.
In National Dry Company Ltd., [1980] OLRB Rep. Aug. 1217, the Board stated:
. . . [Section 13] is intended to prevent the certification of unions which are in less than an arm's length relationship with the employer. In other words, it is aimed at preventing the establishment of "sweetheart unions". It is not uncommon for persons in the gray area at the fringes of management, like Mr. Rondana, whose precise employment status is not clear until a determination is made by this Board, to get involved, sometimes deeply, in a union. (See Toronto Children's Aid (1976] OLRB Rep. Nov. 651; Kelly Funeral Homes Limited, [1973] OLRB Rep. Feb. 87; S. D. Adams Welded Products Ltd. 41978] OLRB Rep. April 353). Less often, but occasionally, persons of clearly managerial rank lend their support to a union's campaign to organize their employees. (See Municipality of Casimir, Jennings and Appleby, [1978] OLRB Rep. Feb. 130 [incorrect citation in original] affirmed in an unreported decision of the Supreme Court of Ontario (Divisional Court) dated July 11,1978). That, of itself, does not raise a section [13] bar to certification, nor does it necessarily cast any doubt upon the validity of membership evidence. Where the evidence establishes that the foreman or manager was clearly acting contrary to the employer's interests and would have been seen to be so motivated by any reasonable employee, the fundamental concern about a "sweetheart union" underlying section [13] of the Act does not arise. When that is the case the section [13] bar to certification does not arise and there is no reason to presume, absent substantial evidence to the contrary, that the employees were subjected to undue influence in their decision to join a union.
(See also Air Liquide 64 C.L.L.C. ¶16,002; Millwork and Building Supplies Company Limited, [1968] OLRB Rep. June 273; Acme Ruler Company Limited, [1969] OLRB Rep. Nov. 952 and Municipality of Casimir, Jennings and Appleby, [1978] OLRB Rep. Feb. 130, affd July 11, 1978 (Div. Ct.).)
- In this case, and apart from the foregoing statements, there was nothing in the initial response or in the subsequent particulars to support the employer's allegations of misconduct. Instead, the crux of the employer's case, as it related to the managerial employees, appears to have been captured by the first part of the following proposition set out in conclusion to its response to the applicant's request for particulars:
"The respondent states that the affected employees were more responsive to the entreaties of former managers whose representations, inducements and exhortations tainted the membership evidence of the Applicant".
(emphasis added)
From the Board's point of view, a heightened responsiveness to the entreaties of certain rogue managers, borne out of feelings of loyalty, friendship, or a simple desire to please, is not sufficient to cast doubt on the voluntariness of signed membership evidence. Employees are expected to be able to separate such emotions from their feelings towards unionization, or to weigh them appropriately in the balance, before signing a union card.
For all of these reasons, I ruled that I would not deal with the evidence concerning the alleged activities of the "managerial" employees.
Merits
The remaining issue was whether Brando Paris, a senior organizer for the applicant, made representations to employees that would cause the Board to doubt the integrity of the signed membership evidence. It was the position of the respondent, as set out in its pleadings, that Mr. Paris told employees at the card signing meeting that "they could get out of the union at anytime". The respondent submitted that this was a material misrepresentation that went to the heart of the membership evidence and should cause the Board to dismiss the application.
After hearing the evidence of the three employer witnesses who testified in support of this allegation, as well as that of Mr. Paris, I was unable to conclude that the representation set out in the employer's pleadings, or any similar representation, had in fact been made. The inconsistencies in the evidence of the employer's witnesses, when considered together with such factors as their demeanour when testifying, their apparent inability to resist the tug of self interest when shaping their answers or to recall events, and what was most reasonable and probable in all the circumstances, contributed to this conclusion. Without delving too deeply into the realm of speculation, it appeared to me that the employer's witnesses had experienced a classic "change of heart" and may have gone on to convince themselves that Mr. Paris was responsible for their predicament. In this connection, it is important to understand that all of the employer's witnesses are adults and none of them impressed me as being unable to understand the true meaning of their choices at the time they made them.
A number of facts were not in dispute. A meeting was held on July 28, 1994 at Mark and Larry's Restaurant in Scarborough. The meeting had been arranged by Brian Cheong, and employees were aware that a union official would be present.
Mr. Paris arrived at the restaurant sometime before 4:30 and was introduced to employees shortly thereafter. By that time, as many as 10 to 15 employees were gathered around a large table; some were seated, some were standing, and a number of conversations appear to have been going on at once.
Mr. Paris began the meeting by saying that he would prefer to answer questions rather than to give a speech. At some point he also produced blank applications for membership. Early on, two employees asked whether they would lose their bonuses or hours of work if they joined the union. Mr. Paris replied that once the application was submitted, the "statutory freeze" would apply and the employer would be unable to alter the existing terms and conditions of employment. The two then asked to sign cards. Significantly, at that point, Mr. Paris cautioned the employees against signing the cards if they might be inclined to change their minds in two or three days. (Apparently, before attending the meeting, Mr. Paris had learned of another application the union had filed in respect of another Consumers Distributing store at Dixie Road and Dundas Street. That application was withdrawn after a substantial number of employees withdrew their support and the employer raised a number of allegations of misconduct.) After the employees indicated that they were certain of their decisions and would not change their minds, they signed the cards and left the meeting.
Thereafter, events become more murky. At some point, according to the evidence of the first employer witness, Leah Lambrakis, Laura Paddon, whom Ms. Lambrakis was sitting beside, asked "something like, just say in one or two weeks we want to back out, can we?" According to Ms. Lambrakis, Mr. Paris replied "yes" and Ms. Paddon looked relieved. Ms. Lambrakis also recalled that Mr. Paris "didn't force anyone to sign" and "told us to be 100 per cent sure and that it was totally our decision".
In cross-examination, Ms. Lambrakis recalled Mr. Paris' speaking about the Dixie and Dundas episode at about the same time as he referred to the need for 100 per cent certainty. Ms. Lambrakis said that it was also around that time that Ms. Paddon asked her question. Ms. Lambrakis also recalled that Mr. Paris informed the employees that the application would be filed the next day, that the employer would learn of it shortly thereafter, and that the employer might attempt to "come down hard" on the employees. In the latter event, employees were invited to contact Mr. Paris.
Ms. Lambrakis also testified that she read and understood the application for membership before signing it, and that she asked certain questions of her own relating to the jewellery commission and the privacy of the membership evidence. Ms. Lambrakis gave no indication as to whether she signed the membership card before or after Ms. Paddon asked her question, or whether Mr. Paris' answer made any difference to her own decision.
According to Ms. Lambrakis, over the course of the next week and, especially, after the green sheets were posted, a number of the employees started discussing the union, including some who hadn't attended the meeting. Ms. Lambrakis recalled copying the green sheets, taking them home to her father, and being asked why, as a part-time worker and 20 year old university student, she would want to become involved with a union. The message from Ms. Lambrakis' father was "what was so bad at work?" Ms. Lambrakis testified that another employee, Dimitra Tzortzis, with whom she attended the meeting also spoke to her parents, presumably to similar effect. According to Ms. Lambrakis, this was "the consensus that was building up at work".
In the week following the posting of the green sheets, Ms. Lambrakis said, the employees decided to hold another meeting. At that meeting the employees agreed that Christine Kimberley would write a letter to the Board to "get us out of this". According to Ms. Lambrakis the purpose of the letter was to advise the Board that the employees "had thought about it and we really don't want a union anymore".
Laura Paddon testified next. She is 20 years old and lives on her own. Ms. Paddon said that some time after Mr. Paris arrived at the table, she asked him the following question: "If I choose to get out either in one day, one week, one month or six months, can I?" Ms. Paddon said that Mr. Paris replied "Yes, just phone me". Ms. Paddon said that she asked this question because she does not live near her parents and she wanted to have an opportunity to discuss the matter with them. Based on Mr. Paris' answer, Ms. Paddon felt that she could go home and decide "whether this thing was right for me". Her assumption was that "I would no longer be involved in the union, by one phone call, and that if enough other people wanted this there would be no union at the store".
Ms. Paddon said that the next time the subject of the union came up was in a conversation with Dimitra Tzortzis. Like Ms. Lambrakis Ms. Tzortzis had also spoken to her father about the union and together Ms. Paddon and Ms. Tzortzis decided that the union "wasn't for us". Ms. Paddon also said that, at about this time, "people started getting scared" and were concerned about "how to get out". Ms. Paddon attributed this fear to information she received from other employees who had attended the meeting, including Christine Kimberley, that "we couldn't get out just for the asking but had to write a letter to the Board". At this point, Ms. Paddon said, she felt that she'd been lied to by Mr. Paris.
After a number of allegedly abortive attempts to obtain information from management or its solicitors about what to do, Ms. Paddon said that the employees decided to meet and write a letter to the Board. According to Ms. Paddon, the employees initially believed that individual letters had to be written, but were advised otherwise by Ms. Kimberley. According to Ms. Paddon the employees then collaborated on the drafting of the letter, before Ms. Kimberley took it away to complete the job. Ms. Paddon later reviewed and signed the August 8 letter before it was submitted.
Under cross-examination, Ms. Paddon's evidence became significantly less definitive and, at times, contradictory. In her evidence-in-chief, she testified that Mr. Paris had said nothing about the timing of the application, only that he would "get things rolling". In cross-examination, however, she acknowledged that he had said that the application would go in the next day. Further, her understanding of the meaning and effect of the card she signed appeared to vary. Initially, Ms. Paddon said that she understood from Mr. Paris that she would be permitted to withdraw her "membership" in the union, and later she acknowledged that she understood that the card was "a sign-up for membership in the union". In between, however, Ms. Paddon was presented with a sample union card and claimed not to have understood it. She said that she thought it meant that employees would only be "getting information". On one side, the card provides:
UNITED STEELWORKERS
Membership — Ontario
YES, I apply for and accept membership in the
United Steelworkers of America.
_________________________________________________________________________ Date _____________ 19_____
SIGNATIJRE OF AFFLICANT
It was also only under close questioning that Ms. Paddon admitted having been told by Mr. Paris "something along the lines of being 100 per cent sure, and if you're going to change your mind in two or three days then don't sign". According to Ms. Paddon, however, this statement was supplemented by the explanation that, "it'll cost me more paperwork". Ms. Paddon said that Mr. Paris' reference to two or three days was why she asked about "six months". Indeed, during cross-examination, the time frame for Ms. Paddon's possible departure from the union assumed consistently more lengthy proportions and, on one occasion, even included a reference to one year. It is noteworthy as well that Mr. Paris' alleged representation, upon which so much appeared to turn in Ms. Paddon's mind, did not find its way into the employees' August 8 letter to the Board, even though Ms. Paddon said that she contributed to the initial preparation of the letter and read and signed it before it was submitted. When asked about this apparent inconsistency, Ms. Paddon said that she "didn't think [the statement] needed to be in the letter" and that "the letter didn't seem very strong".
Also during cross-examination, Ms. Paddon gave contradictory answers about the role of management in the process. Initially she said that she called management about her predicament but was told that it could give her no information, other than that she might wish to talk to the company's lawyer. Later, however, she said that management told her about the Dixie and Dundas episode and the fact that employees had written a letter to the Board. She said she uncovered this information when she was "trying to get out of the union". Ms. Paddon also testified that she thought the employees would "hear back from [Mr. Paris] again" with more information, even after the cards were signed. The implication here was that this gave Ms. Paddon some comfort with respect to her decision to sign a card at the meeting, knowing that she might later have a chance to retract it. When she was later asked why she signed the card when she did, however, Ms. Paddon said "I didn't know when I was going to sign, if not then. What was I going to do, call him?"
Overall, the manner in which Ms. Paddon delivered her evidence suggested to me a much greater commitment to the wishes expressed in the employees' August 8 letter than to an accurate recollection of the facts.
The most unusual twist in the evidence, however, came through the testimony of the employer's final witness, Christine Kimberley. Ms. Kimberley is 21 years old and works as a sales clerk. Ms. Kimberley said that shortly after joining the meeting and sitting beside Laura Paddon, Ms. Kimberley asked Mr. Paris the following question "Can I pull out of the union at anytime?". Ms. Kimberley said she asked this question because she was "concerned" and "didn't know exactly what she was getting into". According to Ms. Kimberley, Ms. Paddon heard her question and simply repeated it as follows: "Yeah, can we pull out at anytime?". According to Ms. Kimberley, Mr. Paris gave only the following curt answer to both questions: "Yes". She was definitive that there was no amplification on this answer. Needless to say, there was no mention of Ms. Kimberley's question in the evidence of either Ms. Lambrakis or Ms. Paddon.
As the ultimate co-author of the August 8 letter (along with her mother and another employee), Ms. Kimberley was asked during cross-examination whether she made any notes of the meeting at which its proposed contents were discussed. At first, she said that she kept notes, but only of her thoughts and not of what was said, suggesting both a lack of relevance to any issue in the proceedings and displaying some reluctance to provide the notes. At the request of the union, and over the objection of the employer, however, I directed the employer to produce the notes. The hearing then adjourned to allow Ms. Kimberley to return home to retrieve them.
Upon Ms. Kimberley's return, and over the objection of the union, I permitted the employer to introduce the notes. This is how they appear:
(REFER TO ORIGINAL DECISION)
It was the position of counsel for the employer that the third point in the notes lent support to Ms. Kimberley's evidence. I do not agree. The notes were not made contemporaneously with the events they purport to recount, but at a time when the employees were engaged in an effort to withdraw their support for the union. Further, the emphatic obliteration of the word preceding the personal pronoun (which appears even greater on the original document) which is well in excess of the effort employed to cross out the word "was" which appears two lines later, together with Ms. Kimberley's approach to the notes and her overall demeanour, caused me to seriously question their integrity.
In giving her evidence, Ms. Kimberley was, by turns, taciturn, unresponsive and combative. She often spoke with downcast eyes and, during cross-examination, revealed a consistent inability, or unwillingness, to recall events. She could not, for example, remember whether Mr. Paris spoke of the failed union organizing drive at Dixie and Dundas, whether he advised employees to be absolutely sure that they wished to sign a union card, or whether he said he would be sending in the application the next day. When asked a series of questions about the union membership cards, she gave the following typical replies: "I may have read it, but I didn't understand it. It's so long ago that I can't remember. If that's what it says, that's what it says". In short, I did not find Ms. Kimberley to be a credible witness.
In opposition to the employer's evidence, the union called Brando Paris. Mr. Paris has been a full-time organizer for the Steelworkers for ten years. Before that he was a volunteer organizer for another ten. Mr. Paris testified that in his capacity as senior organizer, he provides training to other organizers and attends periodic seminars at which legal counsel provide instruction on the law relating to organizing. According to Mr. Paris, organizers learn what they can and cannot say, in an effort to convince people "in the right way to join the union".
In weighing the evidence of Mr. Paris against that of the employer's witnesses, I was conscious of the fact, conceded by Mr. Paris during cross-examination, that he had a "considerable amount" riding on the Board's findings. It is important to Mr. Paris as a senior organizer and as one who comes before the Board not infrequently that he not only be credible but be seen to be credible, and that he uphold the high standards of integrity demanded by the Board. I also considered the fact that Mr. Paris, unlike the employer's witnesses, was to a large extent "on his home turf" and should be much more comfortable in giving evidence under oath. Even allowing for these factors, however, I preferred the evidence of Mr. Paris to that of the employer's witnesses.
Mr. Paris testified that he became specifically aware of Laura Paddon's identity at the meeting as a result of a remark statement she made in front of the entire table. Although that remark need not be recounted here, suffice it to say that it is one that might well stick in a listener's mind. Mr. Paris recalled that Ms. Paddon sat directly across from him at the table eating chicken fingers and chips, and that she was the last to sign a card. Mr. Paris also recognized Christine Kimberley, whom he saw outside the hearing room while waiting to testify, but he could not recall Ms. Lambrakis.
In addition to the events described in paragraphs 31 to 33 of this decision, and cautioning employees on several occasions to be absolutely sure of their decisions, Mr. Paris recalled explaining the procedure that would be followed if he was able to secure at the meeting the signatures of 55 per cent of the employees in the bargaining unit. He said that he would submit the application the next day and that in four or five days the green sheets would be posted. He explained the significance of the different dates that would appear in the green sheets (terminal, meeting and hearing) and said that a hearing would only be held if something went wrong.
Mr. Paris was emphatic that neither Ms. Paddon nor anyone else ever asked whether they could get out of the union after signing a card. He testified that had he been asked such a question, he would have said "I don't give cards back".
Mr. Paris also recalled receiving a telephone call from an employee approximately one week after the meeting. Mr. Paris said that the employee did not identify herself but indicated that the employees had revisited the issue and no longer wished to be members of the union. He said that he reminded the employee that he had told them several times at the meeting not to sign a card "unless you are 100 per cent sure", and that they could not now back out. According to Mr. Paris, the caller acknowledged having received this information, but wanted out of the union anyway. Mr. Paris said the caller also referred to the green sheets and the possibility of writing a letter to the Board. She asked whether each employee had to write a separate letter, or whether one would be sufficient. Mr. Paris said that this was up to them and that they could do what they wanted, but he would not return the cards. That was the end of the conversation.
In cross-examination, Mr. Paris' testimony was unshaken.
On the basis of the foregoing, and as indicated earlier, I was unable to conclude that Mr. Paris had represented to employees that they could get out of the union after signing applications for membership.
No clear version of events emerged from the evidence of the employer's witnesses and, in my view, the differences were more than might be expected when "stories aren't cooked", to borrow a phrase from employer counsel. Substantial differences existed in the nature of the question asked, the circumstances in which it was put, and the answer given, both within and as between the evidence of the three employer witnesses. Further, and as I have already indicated, the testimony of at least two of the employer's witnesses suffered from serious problems of credibility. It should be noted, however, that at least in the case of Ms. Paddon, these problems did not appear to be the product of any conscious attempt to mislead the Board.
It was clear on the evidence that Mr. Paris cautioned employees not to sign cards if they might be inclined to change their minds in two or three days. I also find as a fact that Mr. Paris advised employees that the application might be submitted the next day, and that they could then be certified solely on the basis of the membership evidence. In these circumstances, it seems to me that the message that was being sent, and which must have been received by employees, was not that they could change their minds at some later date and reverse the process, but that it might well be too late to do so. It seems improbable in the circumstances that Mr. Paris, after telling employees to be absolutely sure about their decision to join a union and not to sign if they might be subject to a change of heart in two or three days, would then say, in effect, "but you can change your mind in a week or two, a month or two, or in six months or a year". Indeed, the significance for purposes of certification of the employees' decisions to sign cards, and the true meaning in Mr. Paris' words, does not seem to have been lost on Ms. Paddon when she referred to the more lengthy time frames for her possible withdrawal from the union. In my view, this lends support to the applicant's argument that employees understood from the meeting that once the cards were signed, the outcome could well be certification regardless of any subsequent change of heart.
Accordingly, and for all these reasons, I rejected the employer's allegations of misconduct in the applicant's organizing campaign and certified the applicant on the basis of the documentary evidence of membership filed with the Board.