[1994] OLRB Rep. September 1190
1151-94-R Teamsters Local Union No. 419, Applicant v. Davis Distributing Limited, Responding Party v. Chandraballi Mussai and Michelle McCready, Group of Employees, Objectors
BEFORE: S. Liang, Vice-Chair, and Board Members S. C. Laing and B. L. Armstrong.
APPEARANCES: Marisa Pollock and Jim O'Donnell for the applicant; Lorenzo Lisi and Marilyn
D. Broderick for the responding party; Barrie W. Carlyle for C. Mussai and M. McCready, objectors.
DECISION OF THE BOARD September 8, 1994
This is an application for certification. A hearing was held by the Board to inquire into allegations made by two employees that they had been intimidated and coerced by union organizers into signing membership evidence. It was submitted by these employees and by the company that the Board should give no weight to any of the membership cards submitted by the union, and dismiss this application, as a result of these allegations.
By decision dated August 12, 1994, the Board dismissed the allegations and issued a certificate to the union. These are the reasons for that decision.
The Board heard the evidence of Michelle McCready, Chandraballi Mussai, Marilyn Broderick, John Mullett, Bob Lundrigan and Jim Francoeur with respect to these allegations. Although there was reasonable consistency between the witnesses with respect to certain events or conversations, there were also significant differences in some aspects of the evidence. In assessing the evidence and arriving at our findings of fact, we have considered all of the evidence and taken into account such factors as the demeanour of the witnesses, the clarity of their evidence, the witnesses' apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all of the circumstances and having regard to the evidence as a whole. In arriving at our findings of fact, we have taken account of the fact that the conversations which are at issue took place from one to one and one-half months prior to the time they were directly put in issue. It was not surprising to us, in this context, that there were some inconsistencies in the evidence, some apparent contradictions, and some inability to recall details. We are satisfied that for the most part, contradictions in the evidence are due not to deliberate deception or a lack of candour, but to factors such as the passage of time and a natural tendency to shape the recall of past events in one's favour. Ultimately, we have found it unnecessary to resolve specific factual disputes as between the witnesses themselves, for we are satisfied that we can resolve this case based on the evidence of the objecting employees.
As general background, this application was filed on July 4, 1994. It was posted in the workplace about July 6th. The Board received a petition after the application date by employees opposed to the union, on July 11th, which was acknowledged by the Board as an untimely petition. On July 13th, the Board also received two identically worded letters from Ms. McCready and Mr. Mussai, dated July 12th, stating:
Reference DDL
File # 1151-94-R
I am writing this letter to make known that as a result of intimidating coercion, I agreed to sign a union membership card.
The individual involved in this matter coerced me into feeling like I was betraying my fellow employees and that I would not be looked upon favourably if I did not sign.
Reluctantly and very concerned about what was being stated to me, I signed this card not realizing what I was doing and not at all understanding any part of the process.
I have never been familiar with the organization of the labour unions and have no desire to be represented by one. I am able to speak for myself freely when I wish to with my employer and feel this would impair that freedom.
This organizing was not done in fairness to people such as myself who were not given information of any nature, other than what was verbally said by the organizer. I believe the organizers misrepresented the purpose.
I submit this as a formal complaint and request an investigation.
cc. Human Resources Mgr.
A few days prior to the first day of hearing in this matter, counsel for the company sent a letter to the Board and to the union containing particulars of these allegations. With respect to Mr. Mussai, essentially, the allegation is that Bob Lundrigan persuaded Mr. Mussai to join the union by telling him that he was "alone in holding out". With respect to Ms. McCready it is alleged, amongst other things, that she was told that everybody else on her shift had signed, that everyone but three persons had signed, and that the union could ensure that the company did not employ people who were "outside of the union".
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.
Against this background, we turn to the facts of this case. We have set out the letter which the Board received from Mr. Mussai. The particulars filed several weeks later allege that he was told by Bob Lundrigan he was "alone" in holding out his support for the union. In his evidence, Mussai maintains that he was told that there were only five people left to sign. He states that he felt pressured to sign as a result of this statement and so signed a card that same night. He also states that subsequently, he asked around and found out that there were more than five persons who had not signed with the union.
Mussai also testified during cross-examination that sometime prior to July 12th, he decided for his own personal financial reasons that he did not want to be involved with the union. He signed the letter of July 12th, stating that he had been coerced into signing a union card, as a means of trying to extract himself from the union. His evidence makes it abundantly clear that Mussai had essentially changed his mind about the union. He became concerned about being able to pay union dues, and decided to see if he could revoke his support for the union. The letter which was sent over his signature was not composed by him, but by Michelle McCready. When
McCready drafted the letter, she had no idea what the nature of his allegations were, only that he wanted to "get out" of the union.
Bob Lundrigan is an employee of the company who was instrumental in the organizing drive, responsible for collecting the majority of the membership evidence. He denies ever making such a statement to Mussai. He states that on the night of June 15th, he approached Mussai about signing a card because he had been told by another employee earlier that evening that Mussai wanted to join. They did not have much conversation, although Mussai asked Lundrigan if a certam employee had signed. Mussai acknowledged in his cross-examination that during the conversation with Lundrigan, he had told Lundrigan that this other employee would also sign for the union.
Even accepting for the purposes of this decision that Mussai was told that there were only five people left who had not signed with the union, this would not have led us to discount either Mussai's membership card or to doubt the reliability of any of the other membership evidence. Without anything more, a misrepresentation or exaggeration as to the level of union support amounts to no more than salesmanship. Where a misrepresentation does not relate to the effect or purpose of the membership evidence, is about something which the reasonable employee can take steps to verify and is made in a context where there would be no reason to either believe or disbelieve the statement without further confirmation, it cannot in itself cast doubt on the voluntariness or reliability of the membership evidence. (See, for example, Masters Construction Ltd., sup ra). The Board's function is not to test the accuracy of every statement made during an organizing drive by partisans on either side. Even if a misrepresentation causes an employee to feel under pressure to sign a union card, there is a qualitative difference between social pressure and intimidation, particularly when there are likely all sorts of pressures bearing on an individual making this kind of choice, from both sides.
Mussai's own actions and evidence make it apparent that it was his own change of heart about the benefits of union membership that gave rise to his allegations, rather than a belief that the statements made to him by Lundrigan intimidated him into signing the membership card.
Turning to the allegations made by Michelle McCready, again, we are satisfied that even on her own evidence, the conversations or interaction between her and other employees do not contain anything which would have intimidated or coerced a reasonable employee into signing a membership card. This is reinforced by McCready's actions before and after signing the card which lend support to our conclusion that her decision to sign the card at the time it was made was her own decision. On the evidence, we find that she has simply changed her mind about her support for the union.
McCready states that she was told by Lundrigan on the night that she signed the membership card that "just about everybody" had signed a card. From her evidence, it does not appear that she took this statement at face value, for she questioned Lundrigan about its accuracy, and then made some of her own inquiries. She states that she was also told by Jim Francoeur that everyone but three people had signed. As with Mussai, we are satisfied that these statements do not constitute intimidation or coercion which would have deprived a reasonable employee of the ability to make their own decision with respect to union membership.
The most serious allegation is that McCready was told that if employees did not sign a membership card, the union could make it difficult for them to work at the company. The evidence on this allegation is less than clear and somewhat internally contradictory. We are unable to conclude from it that there was a clear and plausible threat, either direct or implied, that an employee's job security would be in jeopardy if he or she did not join the union during the organizing drive. McCready stated in examination-in-chief that this comment was made during a conversation with Lundrigan, in which she was asking him questions about the union, union dues, and the general workings of the union. However, later in her testimony, she was less clear about the statement that was made, stating that she "presumed" that the persons who would have difficulty working at the company if the union came in were those who had not signed a card during the organizing drive. She also stated that she understood from the statement that was made to her that it would be difficult for her to work there because she would be seen as betraying her fellow employees. In cross-examination, she stated that she might have misunderstood the statement, although she did understand that she was told that the union could make it "difficult" for people to work for the company. She also added that she was told during the same conversation that whether or not a person had signed, they were still part of the union.
Lundrigan also testified about his conversations with McCready. Some of the details are consistent with McCready's evidence; others are not. He firmly denies telling McCready that just about everybody had signed a union card, or telling her that if the union came in, it could make it difficult for her to work there. Francoeur in his evidence denies having a discussion with McCready about the union's level of support.
McCready also testified that she was told before she signed the card that if the union came in the employees could try and bring back a popular manager who had recently been fired, Lesalles Leonard. She also stated that in a conversation after she had signed a card, an employee told her "now we'll try and get Leonard back". She replied by asking why she had not been told this before. McCready testified that if she had been told this earlier, she would have signed the card a long time ago. She also states that it was the discharge of Leonard that seemed to provide the impetus for the organizing campaign. Employees vocalized their concern that if Leonard could be discharged so easily, then so could they.
McCready also testified that the day after she signed the card, she felt that she had signed "for all the wrong reasons". She felt she had been lied to because after the fact she found out that many more people had not signed a card than she had been led to believe. She states that she then wrote to the Board to see if she could have her name "revoked" from the cards.
It is not surprising to us after the passage of time between this conversation and the time at which the allegations were particularized, and then the time of the hearing, that the evidence about some of the conversations McCready had with other employees concerning the union might be less than clear. In our assessment, this lack of clarity on some points reflects not only the passage of time, but the lack of significance of some of these exchanges to the parties at the time they were made. It is fair to say that the aspects of these conversations that made an impression on McCready were also the aspects on which her recollection was more firm. For instance, it made a strong impression on her that one issue which the union might take up was the question of Leonard's discharge. This was apparently important to her, since she thought Leonard was a good manager. On the other hand, the details of the conversation with Lundrigan about the union's ability to make it "difficult" for people to work at the company were less clear and were in some aspects conflicting.
On all of the evidence of the conversations between McCready and Lundrigan as related by McCready, and even if we were to prefer her version of the conversations over that of Lundrigan, we conclude that the statements made by Lundrigan to her did not include any direct or implied threat that if she did not sign a card during the organizing drive, she could lose her job if the union came in. Even if Lundrigan made some comment with respect to the union's ability to make it "difficult" for persons to work at the company, we simply cannot conclude that this comment was based on a person's lack of support for the union during the organizing drive.
McCready's own statements and actions after the conversation lend support to our conclusion. It is apparent that the most important factor to her in making the decision to join the union was the hope that Leonard might be reinstated by the union's efforts. McCready's own words that she felt afterwards that she had "signed for all the wrong reasons" suggest that she had a change of heart after further consideration. Finally, in the letter that McCready testified she composed on July 12th, and which was sent to the Board, no mention is made of a threat to her job security. Instead, the letter refers to McCready having been made to feel that she would be betraying her fellow employees if she did not sign, and that she would not be looked upon favourably. All of these factors lend support to our view of the conversation with Lundrigan, for if Lundrigan had made a threat that McCready would lose her job if she did not join the union~ we have no doubt that this threat would have left a much stronger impression on McCready than it apparently did. We find it likely that at the time the letter was written (and having regard to the evidence that it was composed by McCready for the signature by both her and Mussai), the "intimidating coercion" referred to amounted to having been led to believe that most employees had already joined the union.
On the evidence, therefore, we do not find that there was any intimidation or coercion by Lundrigan of McCready. We also find no intimidation or coercion in the content of other conversations between McCready and other employees. Other aspects of McCready's interaction with other employees on the night that she signed her card also fall far short of constituting intimidation or coercion. The fact that she was. approached by up to four employees one night, for example, does not constitute undue pressure within the context of an organizing drive.
Ultimately, as we have stated, we are satisfied that neither Mussai nor McCready were intimidated or coerced into signing membership cards. It is apparent that they have for their own reasons, changed their minds about their support for the union. The Labour Relations Act permits a change of mind to affect the membership evidence filed by a union only if it is presented before the application date. In this case, we have no timely, substantiated reason to doubt the validity of the cards submitted on behalf of Mussai or McCready or any other employee. The union filed membership evidence on behalf of over fifty-five per cent of the employees in the bargaining unit. In these circumstances, there is no reason to direct a representation vote.
For the reasons set out, we therefore certified the union as the bargaining agent for the unit of employees set out in our decision of August 12, 1994.