Ontario Labour Relations Board
[1996] OLRB Rep. May/June 499
4188-95-R Maurice Beaudoin and Larry Sawatsky, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 199 CAW, Responding Party v. Venest Industries, a division of Cosma International Inc., Intervenor
BEFORE: Roman Stoykesvych, Vice-Chair.
APPEARANCES: Judith Dunstan, Anne Milford, Jocelyn Paradise, Pat Makinson, Roxanne Verbeek, Michael Johnston, Don Chapman and Janet Jamieson for the applicant; Frank Luce, Dan MacPherson and Rick Valance for the responding party on May 6, 1996; Eric del Junco and Rick Valance for the responding party on May 7, 1996; R. Andrew Staniusz, Chris Heath and Pat Simpson for the intervenor
DECISION OF THE BOARD; June 14, 1996
This is an application for a declaration terminating the bargaining rights of the responding party trade union.
The application was filed with the Board on March 21, 1996. Because of the operational difficulties encountered during the recent strike of the unionized staff of the Board, a vote direction was not issued until April 4, 1996, and the vote itself was not held until April 11, 1996. The ballots cast were immediately counted and the results of the vote, in which a narrow majority of employees voted in favour of the trade union retaining its bargaining rights, were made known to the parties. Representatives of the trade union, the employer and the applicant employees each had, upon the completion of balloting, signed a “Certification of Conduct of Election”, signifying their agreement that the balloting had been conducted fairly, that all eligible voters were given a full opportunity to cast their ballots, and that the ballot box was protected in the interest of a fair and secret vote.
Subsequent to the announcement of the vote results, however, the Board received written representations from a number of employees (“the employees”) concerning alleged improprieties by the trade union or its supporters in the days leading up to the vote. The thrust of the employees’ allegations was that John Maynard, an employee who is a vocal and active supporter of the trade union, on four occasions during the period immediately preceding the representation vote uttered threats and otherwise intimidated employees at the workplace. The representations each requested that another vote be held. As a result, the matter was set down for hearing at the Board’s premises in Toronto commencing May 6, 1996. Over the course of the two days of hearing, the Board heard the testimony of six witnesses (four called on behalf of the employees, two on behalf of the trade union) with respect to the allegations ultimately pursued by the employees, and entertained the submissions of the parties’ counsel in relation to that evidence. What follows is my ruling with respect to these allegations.
Anne Milford, an employee at the Venest plant, was the first witness to testify with respect to the alleged incidents. She stated that on April 3, 1996, she entered the non-smoking lunchroom in order to retrieve her packaged lunch situated there with the intention of eating it elsewhere. Upon entering the room, she indicated that she saw Mr. Maynard, seated with two of his pro-union co-workers. According to Ms. Milford, this trio was widely known in the plant as "the Three Amigos". It was immediately upon her entry into the room, she asserted, that Mr. Maynard issued forth with a threat. While otherwise clear, her testimony with respect to an alleged "threat" was deeply problematical. On two occasions in her direct examination she stated that Mr. Maynard used the words: "Whoever votes to keep the union in should be prepared to move out of town." This version of the alleged statement was affirmed on at least two further occasions in her cross-examination by trade union counsel, and was changed to more closely correspond to the pleaded allegation (i.e. "whoever tries to vote the union out should be ready to move out of town") only upon being advised of Mr. Maynard's likely evidence. Ms. Milford testified that she did not engage in any further discussion in the lunchroom, but nevertheless assumed that Mr. Maynard's comments were directed at her because of the raised voice used by him.
Pat Makinson, a co-worker of Ms. Milford, stated that on or about April 9, 1996, she entered into the same lunchroom in order to retrieve her lunch. According to Ms. Makinson, she was accompanied by Anne Milford. She stated that upon entering the lunchroom she saw John Maynard and two other employees, whom she could not identify at the hearing. She testified that she heard Mr. Maynard say the words "That's fine now, but afterward they better be looking over their shoulders" in a raised voice during the course of the conversation. She was unable to specifically recall any of the immediately preceding words uttered by Mr. Maynard, and her recollection of the other parts of the conversation are at best fragmentary. However, she stated that she assumed from what she described as the "general context" that the statement was meant to refer to her. Ms. Makinson did not engage any of the employees in the lunchroom in conversation and left upon finding her lunch in the refrigerator. It is important to note that Ms. Milford had no recollection of a threat uttered on April 9, 1996.
The Board also heard the evidence of Roxanne Verbeek and Jocelyn Paradise, both of whom testified that they too overheard portions of Mr. Maynard's conversations with fellow employees during which he allegedly uttered threats. According to Ms. Verbeek, on April 8 or 9, 1996, while sitting in the "glove box" area of the plant with a number of other employees, she overheard a portion of Mr. Maynard's conversation with a group of employees, including Don Chapman. Ms. Verbeek stated that during the conversation, Mr. Maynard said words to the effect that he "would personally go after" anyone voting non-union. Once again, although she was not party to the conversation, she testified that because the words were uttered with great vehemence and volume, and because Mr. Maynard was a highly visible and vocal supporter of the trade union, she assumed it was intended for her ears.
The evidence of Ms. Paradise, although relating to what appeared to be yet another alleged incident, was in many respects similar to that of Ms. Verbeek's. On or about April 3,1996, while sitting in the glove box area, Ms. Paradise overheard Mr. Maynard stating "Anyone who voted non-union would have to leave St. Catherines". According to Ms. Paradise, Mr. Maynard was in conversation with Don Chapman at the time. Ms. Paradise did not herself participate in the conversation, but professed to be listening in on it. However, upon careful questioning from counsel for the trade union, Ms. Paradise was unable to recall a single word of the preceding portion of Mr. Maynard's conversation, and further stated that her mind "went blank" upon hearing the above-noted words and, therefore, did not hear any of the ensuing discussion. Ms. Paradise did relate, however, that shortly after the alleged conversation, she spoke with Mr. Chapman who confirmed that he had heard the conversation, and agreed to be Ms. Paradise's witness with respect to the incident. Mr. Chapman, it should be noted, was not one of Mr. Maynard's pro-union friends but instead, appeared to be allied in interest to Ms. Paradise and Ms. Verbeek. Nevertheless, despite featuring prominently in the evidence, and despite being present at the hearing and available to testify, Mr. Chapman was not called as a witness.
Underlying, and, in some respects, obscuring the issue of whether or not the alleged threats were in fact made was a "climate of harassment" that was alleged to be directed at the female employees in the workplace (the substantial majority of whom appeared to support the decertification drive). It was alleged by each of the employees that Mr. Maynard consistently used words such as "cocksucker" or "cunt" in reference to them. They also testified that he was prone to angry outbursts and, rather generally, was perceived as a large and menacing presence in the workplace.
Mr. Maynard testified on behalf of the trade union. Although he denied called the employees "names" at any time, he admitted to employing a number of what are, in any context, deeply offensive and degrading expressions to characterize supporters of the decertification campaign. Nevertheless, he denied making any of the threats alleged. It was his testimony that on several occasions during the two week period preceding the vote he had speculated with his pro-union friends as to his own job security in the event that the union was decertified and in so doing, uttered words to the effect of "if they succeed in getting rid of the union, I'm likely to be fired and have to move out of town". However, he denied implying or suggesting that he would physically harm anyone because of their pursuit of the decertification of the trade union.
There was little disagreement between the parties as to the relevant principles the Board ought to apply in these circumstances, and, as a general matter, there was consensus that a party seeking to annul the result of a representation vote must establish that conduct has occurred of a kind that would deprive employees of the ability to express their wishes in the ballot box. In their submissions, the counsel for the parties made reference to various decisions of the Board, including Greb Industries, [1979] OLRB Rep. Feb. 89, Atlas Specialty Steels, [1991] OLRB Rep. June 728 and Canadian Red Cross, [1994] OLRB Rep. Nov. 1592, in support of their respective positions in the matter. Although the Board has considered the submissions of the parties on this and other matters, it is unnecessary to make further reference to them in this decision in light of my findings with respect to the evidence before me.
In assessing the evidence, it is important to note that each of the threats alleged to have been made by Mr. Maynard were fragments of overheard conversation with third parties. As a result, in none of the alleged instances did the witness participate in the overall conversation, and, for example, no eye contact was made with their alleged interlocutor. It is, of course, by no means impossible for threats of a particularly disturbing nature to be uttered through the medium of a conversation with a third party. However, in such circumstances an appreciation of the context of the overall conversation is important to evaluate what meaning was intended to be conveyed and whether a threat was in fact uttered. As each of the employees emphasized in their testimony, their conclusion that Mr. Maynard was uttering threats, rather than otherwise engaging in conversation with his work colleagues, was based on their understanding of the overall situation. Yet, a depiction of the specific context of Mr. Maynard's remarks was notably absent in the evidence of each of the employees' witnesses and the state of the evidence with respect to this matter can be characterized as fragmentary at best. Of particular concern in this respect is the evidence of Ms. Makinson. In the absence of a concrete conversational context, it is far from clear who should be "looking over their shoulders" and whether "looking over their shoulders" should be in response to potential physical, employment or social consequences.
The evidence relating to the alleged threats in the lunchroom is also characterized by substantial internal inconsistency. For example, Ms. Makinson testified that she attended in the lunch-room with Ms. Milford on April 9, 1996, during which time a threat was uttered. However, Ms. Milford did not testify with respect to an incident on April 9, 1996, but testified instead to events on April 3 with no reference to Ms. Makinson. I do not accept counsel for the employees' submission that the numerous discrepancies of this sort in the witnesses' testimony ought to be disregarded given what she characterized as the considerable passage of time. The events in question took place only four or five weeks prior to the giving of their testimony at the hearing. Moreover, each of the witnesses were sufficiently focused on the significance of the events to provide submissions to the Board within a week of their alleged occurrence. While I am not prepared to place decisive significance upon the witnesses' inability to recollect the precise circumstances, dates or sequence of events, I am persuaded that it is a factor seriously weighing against the acceptance of their testimony.
Moreover, even if considerable latitude is accorded the witnesses in this regard, their evidence, whether taken separately or together, does not provide a particularly coherent account of events. Thus, if it were accepted that Ms. Makinson was accompanied by Ms. Milford when entering the lunchroom on April 9, as was asserted by Ms. Makinson, it is difficult to fathom how Ms. Milford could not be able to recall a threat, if one were made. On the other hand, if it is accepted that either (or both) Ms. Makinson or Ms. Milford were mistaken as to the exact date of the alleged events, and that the lunchroom incidents were, in fact, one incident, then the accounts of the events described by the two witnesses are diametrically opposed. Indeed, notwithstanding employee counsel's valiant effort at rehabilitation in re-examination, I find that Ms. Milford's evidence essentially confirms the thrust of Mr. Maynard's version of events, viz., that the statement made by Mr. Maynard included reference to adverse consequences being visited upon employees who voted in favour of the union.
The fragmentary nature of the evidence of Ms. Verbeek and Ms. Paradise relating to the alleged threats in the glove box area also is the cause for considerable concern, Both witnesses asserted in their evidence that the purported threats arose. in the course of Mr. Maynard's conversations with Mr. Chapman, but, as noted, the witnesses were unable to provide any further details of the conversations. If the evidence of Ms. Verbeek and Paradise is to be believed, Mr. Chapman was the person actually involved in the conversations which contained the alleged threats, and, one must assume, would be in a substantially better position to testify with respect to these statements than they.
Given the fragmentary account of these conversations in the testimony of Ms. Verbeek and particularly of Ms. Paradise, and their concomitant inability to relate a context in which the statements were allegedly made, and, further, in light of Mr. Maynard's express and repeated denials of the allegations, the Board accepts trade union counsel's characterization of the evidence as "crying out" for the testimony of Mr. Chapman with regard to his conversations with Mr. Maynard. Yet, despite being available to be called as a witness - and indeed, it was the evidence of Ms. Paradise that arrangements had been made for that very purpose - Mr. Chapman was not called. Under such circumstances, it is appropriate to draw the adverse inference that, had Mr. Chapman been called as a witness, his testimony in relation to the glove box incidents would not support the version of events described in the evidence of either Ms. Paradise or Ms. Verbeek.
In addition to these uncertainties and inconsistencies in the evidence, it became apparent during the hearing that the witnesses called on behalf of the employees experienced considerable difficulty in resisting the tug of self-interest in the course of their characterization of events. Particularly in relation to questions put by union counsel as to their awareness of the highly visible role taken by the employer in the events leading up to the vote, the witnesses each demonstrated inexplicable and improbable lapses of memory or understanding such as to make me conclude that they were, at the least, capable of shading their recollection of events so as to correspond to their perceived interest in the matter. In particular, it is most improbable that, in the circumstances of the decertification campaign in which the employer participated in a highly visible and partisan manner, that witnesses would be unable to identify the employer as favouring the "No union" option. Moreover, it simply strains credulity that each of the witnesses did not read any of the numerous pieces of correspondence addressed to them by the employer because "they threw them out without opening the envelope."
This is not to suggest that I necessarily accept the trade union's argument that the employees were engaged, in effect, in an organized attempt to deceive the Board, and it will therefore be unnecessary to review the evidence with respect to that matter. Nevertheless, it is apparent that, in the highly-charged environment of the decertification drive, the witnesses were easily prepared to assume the very worst of Mr. Maynard, a man they clearly (and, given his penchant for disgusting commentary, justifiably) distrusted and disliked. Accordingly, the reliability of their already fragmentary perceptions and accounts of the events to which they testified must be further discounted and, bearing this in mind, it is by no means improbable that they may have perceived any of Mr. Maynard's speculations as to his own predicament upon decertification as referring to them.
It must also be noted, however, that Mr. Maynard, for his part, was not immune from the appeals of self-interest in the course of the giving of his evidence, and, more generally, was not an impressive witness. Especially with respect to his testimony in relation to alleged contacts that the witnesses had with members of management immediately prior to their sending representations to the Board, it is apparent that Mr. Maynard was prepared to embellish his testimony in a particularly self-serving manner. And, as was the case with the employee witnesses, Mr. Maynard brought the highly partisan atmosphere of the decertification campaign into the hearing room, and the reliability of his evidence must be seriously questioned in that light as well.
Nevertheless, his evidence denying the allegations was not subject to the same problems of lack of clarity and internal inconsistency exhibited by the employees' witnesses and, bearing in mind all of the circumstances, I find it an account more consistent with the inherent probabilities of the events. Accordingly, having regard to all of the evidence before me, I conclude that Mr. Maynard's evidence of denial is to be preferred to each of the employees' witness on the question of whether the alleged statements were made. Therefore, I find, on balance, that the allegations of threats were not made out in the evidence and I am persuaded that the employees' objection to the vote must fail.
In this regard, counsel for the employees submitted that Mr. Maynard's consistent practice of using degrading and offensive language in relation to the female employees in the workplace was sufficient in itself to poison the work environment such as to cause employees to be incapable of asserting their will in the ballot box. However appalling the conduct might be (and it is hardly diminished by the fact that some of it may have occurred in the presence of members of the union's shop committee) the evidence falls far short of establishing the effect that counsel suggests. Indeed, one can imagine few courses of conduct less conducive of inducing employees to support a trade union that the one apparently undertaken by Mr. Maynard. In fact, if anything, the reverse may be true.
Having regard to all the evidence before me and to the submissions of the parties, I am satisfied that Mr. Maynard did not threaten or intimidate his fellow workers in the days prior to the representation vote, and accordingly, see no reason why the result of the vote should not be considered an accurate representation of the employees desire to be represented by the trade union.
As noted above, not more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in opposition to the responding party.
The application is therefore dismissed.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
The employer is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted for 30 days.