[1995] OLRB Rep. January 79
2830-94-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Versa Services Ltd., Responding Party v. Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 414; Milk and Bread Drivers, Dairy Employees Caterers and Allied Employees Local Union No. 647, Intervenors
BEFORE: S. Liang, Vice-Chair.
APPEARANCES: Lisa Kelly, Tamara Heller, Maureen Kirincic and Tom Rooke for the applicant; Michael Horan, Robert Rochkin and Oliver Zeidler for the responding party.
DECISION OF THE BOARD; January 17, 1995
This is an application for certification. A hearing was scheduled into this application, initially to hear allegations raised by the employer with respect to the union's organizing drive. During the course of the proceedings, other issues arose, relating to a change in name of the applicant. Ultimately, some of these issues were resolved between the parties. On January 9,1995, the Board heard the evidence concerning the allegations raised by the employer, and the parties' arguments as to the disposition of this application. It is the employer's position that despite the level of membership support as demonstrated by the membership cards filed in support of this application, the Board should order a representation vote because of the circumstances of the organizing drive and because of the errors in the documents relied on by the union in this application.
On the application form, the applicant is shown as "National Automobile, Aerospace and Agricultural Workers Union of Canada (CAW-Canada)". It is not in dispute that because of a clerical error, the word "Implement" was omitted from the title of the applicant. Accordingly, the title of proceedings has been amended, by the previous panel of the Board dealing with this application, to show the applicant's name as "National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CA W-Canada)".
By its decision of December 16, 1994, the previous panel also directed the union to lead evidence to establish the appropriateness of a certificate issuing in the new name of the applicant, which does not appear on the membership cards (nor is it the name appearing on the application).
Between December 16th and the date that the parties appeared before this panel, the parties resolved certain issues. The applicant has filed documents relating to its change of name, which are not in dispute. The parties are agreed that the union known as the National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) ("the old name") changed its name to the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) ("the new name") at a convention held in Quebec City between August 23 and August 26, 1994, and that the change of name took place in accordance with the provisions of the governing Constitution of the National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada). It is also agreed that the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAWCanada) is a trade union within the meaning of the Labour Relations Act.
For ease of reference, the Board will use the term "CAW-Canada" to refer to the union which is the applicant in these proceedings, whether under the old name or the new name. At the hearing, counsel for the employer agreed that if a certificate is ultimately issued in this application, it ought to bear the new name of the CAW-Canada.
The employer's allegations concerning the union's organizing drive centre on the activities of a former supervisor at the workplace, Gail Tuck. The employer's position is that Ms. Tuck, acting on behalf of the union, used intimidation and coercion to convince employees to join the applicant.
The Board heard the evidence of three witnesses called by the employer in support of its allegations. The union called no evidence. It is to be noted that certain portions of the evidence called by the employer was hearsay in nature. Most of it was not objected to, nor was it contradicted. Although the Board recognizes the limitations on the reliability of hearsay evidence, I am nevertheless prepared to assume its accuracy for the purposes of this case, since ultimately it does not affect my determination.
The employees affected by this application work in a cafeteria at the Toyota plant in Cambridge, in food service preparation and related functions. The employer (also referred to herein as "Versa") also operates at other locations in Cambridge. The on-site supervisor at the Toyota plant until October 21, 1994 was Gail Tuck. Versa has other management personnel who also visit the Toyota site from time to time.
On or around October 3, 1994, the cook at the Toyota cafeteria was transferred by Versa to another location. Gail Tuck became very concerned about her own position. It appeared that she felt under pressure from management at Versa and felt that they were unhappy with her performance. It became her assumption quite quickly that she would also be transferred out of the Toyota cafeteria. This assumption was shared by other employees of Versa.
One person with whom Ms. Tuck shared her fears was Blanche Vokes. Ms. Vokes had a good relationship with Ms. Tuck, and considered themselves friends. On a number of occasions between October 3rd and October 21st, Ms. Tuck called Ms. Vokes into her office to discuss her situation. It was Ms. Vokes who first ventured the opinion to Ms. Tuck that "it looks like you're next". During these conversations, Ms. Tuck made statements to Ms. Vokes such as: "they've gotten rid of Molly [the cook], they're going to get rid of me, and you guys should organize to protect yourselves, or they'll be getting rid of all of you".
Ms. Tuck also stated her opinion that the Versa management would put the employees on rotating shifts. She mentioned that in some cafeterias run by Versa, some cashiers are used only during the lunch time. Ms. Tuck stated that the employees needed to form a union. She told Ms. Vokes that she should call employees at other cafeterias and find out how to get a union.
The scenarios that Ms. Tuck put forward became the topic of conversation amongst the employees at Versa. Employees became worried about possible changes to their work, particularly the prospect of changes to the shifts, cuts in hours, or job losses. Ms. Vokes stated that the employees were "all scared to death" and "panicked" about how they could arrange their lives around two shifts.
Ms. Tuck found out on October 19th that she was to be transferred from the Toyota cafeteria. By Monday, October 24, she was no longer at this location. A day or two before she left, she spoke to a number of employees who were on a coffee break. She implied that the new management who would take her place would not be as sympathetic as her. She stated that the first thing that would be done would be to put the employees on rotating shifts and cut back on employees' hours. Ms. Tuck also called some of the employees at home in the evening with some of the same comments. Among other things, she stated to Ms. Vokes during one of these phone calls that the people who were taking her and the cook's place at Toyota would want to put their people in the Toyota cafeteria, and that anyone who was loyal to Ms. Tuck would be "out".
After employees found out about the imminent transfer of Ms. Tuck, they began to discuss the possibility of unionizing. One of the topics of discussion was the general impression employees held that if they unionized, Toyota would end its contract with Versa and the employees would all be out of jobs. Employees questioned whether or not this was true. There was some discussion about the labour laws and how they would protect employees even if Toyota ended its contract with Versa. There was also discussion about the wages at unionized cafeterias, which employees understood to be higher than their wages. Ms. Vokes expressed the opinion that she thought the idea of a union was Ms. Tuck's way of getting back at Versa because she was angry at the company. Ms. Vokes thought that the employees should wait to see what the new management was like.
One of the employees decided to contact the applicant, who was known to her because her husband is represented by the CAW-Canada in another workplace. A meeting was arranged, which was held on or about October 26th. Ms. Vokes declined to attend.
One of the persons testifying, Cheryl Dornhoefer, is not an employee in the bargaining unit, but a workplace acquaintance of Ms. Tuck, who attended a farewell dinner for her after Ms. Tuck had left Toyota. Ms. Dornhoefer testified that at this dinner, Ms. Tuck confided to her that "her staff had signed their cards", that "I told them I can't protect you anymore" and that she "told them what union to choose", i.e. the CAW. She expressed her anger at Versa for transferring her from Toyota.
This application was filed on November 2, 1994. As indicated above, the application bore the old name of the CAW-Canada, although the new name had already been adopted. Employees signed membership evidence which also bore the old name, because new cards had not yet been printed. The Form A-4 submitted in support of the application pointed out the change in name; due to an error, the reference to the new name omitted the words "of Canada".
In argument, counsel for Versa submitted that the combination of Ms. Tuck's conduct and the irregularities in the forms filed by the union with this application should cause the Board to exercise its discretion under section 8 of the Act and order a representation vote. The employer
equates Ms. Tuck's conduct with the conduct of the applicant. The evidence, it is suggested, establishes that Ms. Tuck was acting on behalf of the union in these events. To the extent that she made threats to the job security of the employees, which led them to join the applicant, the applicant's membership support is under a cloud and should be confirmed through a representation vote.
The employer does not suggest that because of Ms. Tuck's involvement, section 13 applies to this organizing campaign. The employer very specifically denies that in any of her actions, Ms. Tuck was acting on behalf of the employer. The employer asserts that she was acting on behalf of the union throughout; the statements made by Ms. Tuck to Ms. Dornhoefer are an admission against interest as against the union.
Counsel for the employer urges the Board to draw adverse inferences from the fact that the union called no evidence. It is a reasonable inference from the evidence, it is suggested, that the union was complicit in Ms. Tuck's activities; it is incumbent on the union to rebut that. The fact that the union did not call as witnesses its inside organizer, its outside contact, or Ms. Tuck, should lead the Board to draw adverse inferences against the union. It is "symptomatic of the disregard shown by the union" of the Board and of the Board's processes.
The parties referred the Board to the following cases in their submissions: Aurora Steel Service Limited, [1986] OLRB Rep. March 301; Masters Construction Ltd., [1988] OLRB Rep. Feb. 162; Waldorf Astoria Hotel, [1981] OLRB Rep. Sept. 1308; and Dualex Enterprises Inc., a division of Depco International Incorporated, (Board File No. 2031-94-R) decision dated December 5, 1994 as yet unreported.
In Davis Distributing Limited, [1994] OLRB Rep. Sept. 1190, the Board discussed its approach to allegations of improper union conduct in the collection of membership evidence:
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.
The employer in this case alleges that the applicant has collected its membership evidence through threats to employees' job security. If it were true that the union obtained its support through such threats, the voluntariness of its membership evidence would be in doubt. However, this case is quite different on its facts from those relied on by the employer. In Aurora Steel Service, the Board found that the collector of the membership evidence told certain employees that if they did not join the union, they could lose their jobs when the union came in. This was done in order to get the employees to sign union cards. In Masters Construction Ltd., the union's organizers told one of the employees that if he did not join the union, he would be fired because his employer will only have employees employees affiliated with the union working for it. In Waldorf Astoria Hotel, the Board found that the union's organizer told employees that if they did not sign union cards, the organizer would be discharged first and the employees would probably be discharged next. The Board also found that the organizer misrepresented to certain employees that the manager supported the unionization of the employees. The combination of these statements led the Board to direct a representation vote.
In the case before us, there is no evidence that Ms. Tuck was involved in any way in the collection of the membership evidence submitted with this application. There is no evidence that she was acting on behalf of the union when she made comments to employees about the desirability of unionization. There is no doubt that Ms. Tuck's comments to employees were probably the catalyst that led them to seek unionization. However, there is nothing to suggest that she was doing anything but expressing her own views. The fact that some employees might have found her views persuasive and joined the applicant as a result does not mean that her actions should be taken to be those of the applicant.
Even if I were to accept as true that Ms. Tuck knew that the employees had signed membership cards in the applicant, and that she had given the name of the applicant to the employees, there is no evidence that she ever induced an employee to sign a membership card in the applicant on the basis of her statements. Indeed, apart from the conversation with Ms. Dornhoefer, there is absolutely no evidence that Ms. Tuck even knew that it was the CAW-Canada whom the employees contacted; this, despite detailed evidence from Ms. Vokes about their numerous conversations about the need for a union in the workplace.
Further, the Board's decisions relating to the use of threats to job security in the obtaining of membership evidence must be read in their context. There is a critical difference between a union organizer or supporter pointing out to employees the inherent vulnerability of their position at common law, without a collective agreement to "protect them", and statements made to the effect that employees who do not join the union, as distinct from those that join the union, might lose their jobs. The former kind of statement is simply not a threat in the sense of promising a reprisal if the listener does not comply. It is not a threat to suggest that without a collective agreement an employer is at liberty to change terms and conditions of employment. It may cause anxiety or consternation, but these are the sorts of matters that are commonly discussed during an organizing drive. Ms. Tuck's statements may have been more specific or emphatic in tone; however, they were clearly statements of her opinions, based on her own experience. They are not matters which are in her control to bring about, and they are not matters which employees would reasonably have seen as being in her control to bring about. Employees were free to form their own opinions about Ms. Tuck's statements; Ms. Vokes, for instance, did not take the statements at face value, and evidently felt Ms. Tuck was being premature in her predictions.
The cases where the Board has discounted membership evidence because of threats about job security have usually involved statements by a union organizer that employees who decide against joining the union may find their employment in jeopardy, because of this decision, and contrasted with employees who decide to join the union. In other words, the Board's concern is that a threat to job security not be used as a reprisal in order to induce employees to join a union. This is also why some of the Board's decisions distinguish between statements made during an organizing campaign by employees who are not in a position to effect the threatened reprisal, and those made by persons who have or are reasonably perceived to have the authority to bring about the consequences threatened: see, for example, Covello Brothers Limited, [1989] OLRB Rep. Feb. 119. Waldorf Astoria Hotel is arguably a case involving more general statements about the lack of job security without a union; however, the Board was clearly very concerned in that case about the impact on employees of the organizer's misrepresentation of management's support of the organizing drive. It is not evident that the Board would have directed a representation vote otherwise.
In the circumstances, I am not convinced that Ms. Tuck's encouragement of unionization amongst the employees, nor her strongly held and expressed views on the outlook for this workplace, cast doubt on the voluntariness of the membership evidence submitted. They are views which a reasonable employee could debate, challenge or accept. I do not find that they constitute intimidation or undue influence, even if made on behalf of the applicant, which they were not.
On the issue of "adverse inferences" raised by counsel for the employer, whether or not inferences can be drawn from the evidence is a matter of weighing the evidence and making findings of fact. Any party that decides not to call evidence runs the risk that in the absence of this evidence, inferences may be drawn from the opposing party's evidence which is contrary to its position. In this case, the employer urges me to draw the inference from all of the evidence that Ms. Tuck's activities were part of the union's organizing efforts. I have found that the evidence does not support this inference. The employer, however, also appeared to urge me to apply the notion of "adverse inference" more broadly, submitting that the union's failure to call evidence is indicative of a more general disregard of proper processes that the Board should take into account in determining whether a representation vote ought to be held. I reject this submission. As I have indicated, parties to a hearing make their own tactical decisions as to what evidence to call. It is a risk they take, and which they are entitled to take. There is nothing improper in making this sort of tactical decision. To the extent that there is a risk involved, the risk is related to the fact-finding process, and not to anything more general than that.
It was not argued that I should order a representation vote based on the errors in the A-
4 form, the title in the application, or the name used in the membership applications, apart from the allegations regarding the conduct of Ms. Tuck. However, it was urged that these errors are compounded by the activities of Ms. Tuck in casting a cloud over this organizing campaign. There are certain aspects of the certification procedures on which the Board expects scrupulousness and great care on the part of a union. Clerical errors that do not lead to any prejudice, or give rise to material misunderstandings, however, do not in themselves undermine the merits of an application. Further, although the membership evidence was collected under the old name at a time after the CAW-Canada adopted its new name, there is no suggestion that any employee was misled by this.
For these reasons, the Board finds that there is no reason to hold a representation vote. On the basis of all the evidence before me, I am satisfied that more than fifty-five percent of the employees in the bargaining unit at the time of this application had applied to become members of the applicant on or before that date.
The Board finds that the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) is a trade union within the meaning of section 1(1) of the Act.
Having regard to the agreement of the parties, the Board finds that:
all employees of versa Foods Services, a Division of versa Services Ltd. engaged in its cafeteria operation at Toyota Manufacturing Company in the City of Cambridge, save and except supervisors, persons above the rank of supervisor, office and clerical staff, students employed during the school vacation period and persons in bargaining units for which any trade union held bargaining rights as of November 2, 1994,
constitute a unit of employees of the responding party appropriate for collective bargaining.
- A certificate will issue to the applicant, in its new name: National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada). The title of proceedings is amended accordingly.