United Food and Commercial Workers International Union, Local 175 v. Kraft Canada Inc.
[1997] OLRB REP. MARCH/APRIL 239
1912-96-R; 2077-96-U United Food and Commercial Workers International Union, Local 175, Applicant v. Kraft Canada Inc.., Responding Party; United Food and Commercial Workers International Union, Local 175 & 633, Applicant v. Kraft Canada Inc., Responding Party
BEFORE: Gail Misra, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
APPEARANCES: John L. Stout, Sherry Picciottoli, Richard Wauhkonen and Kevin Dowling for the applicant; F. C. Hamilton for the responding party.
DECISION OF THE BOARD; March 26. 1997
Board File No. 2077-96-U is an application filed under section 96 of the Labour Relations Act, 1995 wherein the union claims violations of various sections of the Act. Prior to the commencement of the hearing the applicant (the "union") indicated to the responding party (the "employer" or "Kraft") that it was no longer relying on all of the allegations and pleadings made in its original application, but was only pursuing paragraph 18 of its application which states as follows:
On the evening of October 7. 1996 the Respondent distributed, again via courier to each employees [sic] home address, another letter and a video tape which contained blatant. [sic] inaccuracies regarding the provisions of the Act. Specifically, the Respondents representative misrepresented the provisions found at s. 86 of the Act. (see Schedule "F' attached hereto).
It is the union's position that the video and accompanying letter distributed by the employer to all of the Kraft employees who were eligible to vote in the representation vote held on October 9, 1996, contained a material misrepresentation, was propaganda, and was distributed at the last possible moment so that the union had no time to respond to it. It is alleged that the content of the video and the letter created an issue for employees which had not hitherto been a concern. The union is seeking as a remedy a second vote, along with other remedies, on the basis that the video and letter deprived employees of the opportunity to freely express their true wishes on October 9, 1996.
The employer urged the Board not to hear any evidence about what employees may have thought as a result of receiving the video and letter as to do so the Board would have to hear from all of the employees. It contended that eight of the videos did not have sound, and no one knows how many employees did not even view the video. It is argued that the Board, after viewing the videotape, can decide what a reasonable voter would have thought had s/he viewed the video and read the letter. In any event, the employer argued that the union had also sent out misleading communications to the employees and had itself given a characterization of section 86 of the Act which was much like that given by Kraft in its letter and video.
The Board determined it would view the video but would not hear evidence from the union's witnesses about what they believed as a result of their particular viewing of the video. The Board was provided with the text to the video presentation and screened the video. The letter which had been sent to employees with the video was largely the same as what Mr. Wagdi Henein said on the video. Mr. Henein is the Director of Manufacturing for the Scarborough and Cobourg plants of Kraft. The letter was signed by Mr. Henein; Lionel Domerchie, the Plant Manager for Scarborough; Fred Marcon, the Human Resources Manager; and Gary Dunn, the Associate Manager of Human Resources. The letter states as follows:
October 8, 1996
TO: THE SCARBOROUGH TEAM
As you all know, the labour board has now scheduled the vote for this Wednesday. This vote will determine your future state as union or non-union employees. We would like to take this opportunity to speak to you before you make your decision and to talk about the importance of making an informed choice.
Before you cast your ballot, we urge you to think about the issues once again. Remember, Unions are in the business of getting new members. In selling their organization they are free to make any promise they wish, whether they can realistically achieve it or not. Unions may promise more money and better benefits. The reality is that everything is subject to negotiations, which might last for more than 12 months. During that time, the law states that we may not change "the rates of wages or any other term or condition of employment or any right privilege or duty...".
We urge you to remember what we have achieved so far at Scarborough. Over the last five years our plant has continued to thrive and maintain a leading position versus internal and external competitors. Because we are competitive, that has led to growth and plantwide investment. We need to stay competitive.
Kraft follows a policy that an employee who is efficient and productive and who respects the rules of conduct of the Company will keep his/her employment with or without a union. The profitability of the Company depends on your own productivity and that of your colleagues which represents your real security of employment.
Kraft prefers that employees in its plant not be unionized. This is because we prefer to work directly with our employees rather than through a third party. We care about you and we prefer to interact with you on a 1-to-1 basis.
Ultimately, the decision is yours to make. We respect that it is an individual one and we urge you to weigh all of the facts.
- One of the portions of the presentation and letter which the union is most concerned about is the following:
"The reality is that everything is subject to negotiations, which might last for more than 12 months. During that time, the law states that we may not change "the rates of wages or any other term or condition of employment or any right privilege or duty..."."
It is the union's belief that the employer was misrepresenting section 86 of the Act in this statement as the Board has said that this section allows for "business as usual" and the fulfilling of the "reasonable expectations" of the employees while negotiations continue. It is the union's contention that it would have agreed to the employer granting pay increases which may have usually flowed to employees, but that by saying this the employer was intimating that there would be no normal increases until the end of bargaining, which may take more than a year. The union claims the employer should have cited the whole of section 86 so that employees would have understood what the section allowed, or alternatively, should have mentioned the section number so that employees could find out for themselves what it said.
- Claiming that the union made similar references to section 86 as had been made by the employer, Kraft relies on the union's October 7, 1996 letter to Kraft employees in which it stated as follows:
….Current wages, working conditions and benefits are PROTECTED BY LAW under s. 86 of the Ontario Labour Relations Act. The Company can not take anything away BY LAW.
The union also takes umbrage at the third paragraph of the employer's letter, claiming the sub-text therein is that being competitive is to be equated with having no union and that further investment in the Scarborough plant is going to be compromised if the employees vote for a union.
The union argues that since the outcome of the vote was so close (28 against, 27 for, one segregated and not to be counted), if the Board believes that even one person may have been swayed by the video and letter then it should order a second vote.
The employer relies on all of its correspondence to the employees of Kraft for the proposition that it made clear throughout the campaign that it would respect the decision of the employees to have a union should that be the result. Kraft has an Employee Relations Philosophy with respect to third party representation which was cited in the employer's letter to employees of August 21, 1996, and states as follows:
THIRD PARTY REPRESENTATION
It is our belief that the consistent application of the principles of the KCI Employee Relations Philosophy should make it unnecessary for the employees to turn to a third party. However, each employee has the right to join and support a union and also the right to refrain from such activity. We believe that, in our current union-free operations. it is in the best interest of our employees and the company to maintain that status. In those where there is third party representation, we accept the concept of collective bargaining and will deal with an employee representative in a direct and straightforward manner.
In either ease, the primary determinant of a positive work environment will continue to be how well the Employee Relations Philosophy is applied throughout the organization.
- The employer sent letters to the employees dated August 21, 1996; September 13, 1996; October 4, 1996; and October 8, 1996. It is only the last letter sent by Kraft that the union is challenging. All of the letters make some reference to the fact that Kraft has been able to achieve a good product at competitive pricing. The October 4th letter also refers to the investment in the Scarborough plant. However, the union did not make claims of violations of the Act with respect to any of the letters other than the October 8th letter.
DECISION
The union's argument is premised on section 86 of the Labour Relations Act, 1995. The relevant portions of section 86 of the Act state as follows:
(1) Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,
(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and.
(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or
(ii) 14 days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a
conciliation board,
as the case may be; or
(b) until the right of the trade union to represent the employees has been terminated, whichever occurs first.
(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,
(a) the trade union has given notice under section 16, in which case subsection (I) applies; or
(b) the application for certification by the trade union is dismissed or terminated
by the Board or withdrawn by the trade union.
While the Board has recognized the role of propaganda and electioneering in a campaign, it has also consistently indicated that intimidation, coercion or undue influence are not permissible. A party which impugns the results of a vote held under the Act bears the onus of stating and proving its case, as the Board will not engage in or permit a fishing expedition in this respect. (See Citipark Inc., [1996] OLRB Rep. June 367.)
In MeMaster University, [1979] OLRB Rep. July 685, the Board outlined its role in the monitoring of campaigns as follows:
II. The Board, in general, does not consider that it should monitor campaigns preceding a representation election which are designed to persuade members of the voting constituency to exercise their franchise one way or another. It is fundamental to our society that proponents of varying views will each put forward the most persuasive arguments in favor of their position and that the electorate is competent to evaluate and decide. Despite its general position, the Board does not close its eyes entirely to the conduct of the campaign if, in its judgment the campaign has been so waged by one party to preclude the other party from a meaningful opportunity to reply and thus to impair the employees' freedom of choice and thereby call into question the weight to be accorded to the results. It is not every unanswerable claim which will cause the Board to intervene. However, in those instances in which a claim is made, which is in fact false and which relates to a significant factor which would be involved in the voter's final evaluation of the issue on which he is voting, and which the other party has not had adequate opportunity to dispute, the Board will act by ordering a new representation vote. See Joseph Gould and Sons Limited 52 CLLC Para. 17,039.
On the evidence before the Board it is clear that during the campaign leading up to the vote on October 9, 1996, both the union and the employer relied on what is commonly called the "statutory freeze" provisions of the Act. The union told the employees that "current wages, working conditions and benefits" were protected by law under the aegis of section 86, and that in these areas the employer could not take anything away from employees. The employer told employees that during negotiations it was prevented by law from changing wage rates, benefits or any other condition of employment.
While each of the parties had given its statement the nuance it wanted, neither gave the full text of section 86, and neither informed the employees of the union's ability to consent to changes being made to the alteration of wage rates or to any other term or condition of employment. Both told employees that current wage rates and working conditions could not be changed. While this may not encapsulate the entirety of section 86, it is nonetheless correct to the extent it goes in describing the "statutory freeze".
In these circumstances it is difficult to characterize the employer's statement regarding the statutory freeze as a material misrepresentation of the legislation. It may be, as was the union's statement, an incomplete recitation of the section. However, the Board has been careful not to police what is said during certification campaigns too strenuously and does not consider the truth or falsity of campaign literature and speeches unless the ability of the employees to evaluate such literature or speeches is impaired to the extent that their freedom to express their desires cannot be determined by a secret vote (see Stauffer-Dobbie Manufacturing Co. Ltd., 59 CLLC Para. ]8,147). Short of material misrepresentation and threatening and coercive statements, there is some allowance made during an organizing drive for salesmanship by both the employer and the prospective union. Recognition of this reality has led the Board in the past to allow for some puffery and overstatement in electioneering.
The Board has generally taken the view that absent occurrences of so serious and pervasive a nature as to render improbable a reliable expression of employee wishes, it will not lightly order a second representation vote (see Concorde Metal Stampings, [1987] OLRB Rep. Jan. 34). The Board relies on its belief that the average employee is a reasonable and sensible person capable of deciding what is in his or her best interests. As in other electoral processes, voters must be presumed capable of assessing critically the conflicting arguments presented by various parties which are competing for their votes. As the Board noted in Northfield Metal Products Ltd., [1989] OLRB Rep. Jan. 57:
3.... The test is not based on the most gullible or the most firm voter, but the reasonable voter who is possessed of critical faculties and the ability to assess issues and inquire on his or her own behalf.
We therefore do not accept the union's contention that even if the Board believes that one voter was swayed by the videotape and letter sent by the employer, that we should therefore order a second vote. To do as the union suggests would be to set the standard at that of the most gullible voter, and the Board is of the view that is not practical. We are satisfied that there was no material misrepresentation with respect to section 86 in the videotape and letter sent by Kraft to its employees on the day before the vote. Even though the union claims that by sending out these packages to employees just before the vote the employer circumvented the union from responding, we are satisfied that the employer was not telling the employees anything the union had not already said about the statutory freeze. In all of these circumstances, the Board finds no violation of the Act in the action of Kraft.
The Board also finds no violation of the Act in the wording of the third paragraph of the Kraft letter to employees dated October 8, 1996, as it was within the permissible limits of employer speech during an organizing campaign. We are of the view that the paragraph in question says what the text clearly outlines: That the Scarborough plant has been thriving in the last five years, that it has a leading position in relation to its internal and external competitors, that this leading position has led to investment in the plant, and that the Scarborough plant needs to remain competitive. This cannot, in the context of this letter, be found to be threatening or coercive speech.
Having reached the conclusions outlined above, the section 96 application is hereby dismissed. The certification application was outstanding pending the determination of Board File No. 2077-96-U. As outlined earlier, less than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant. The certification application is therefore dismissed.
The Board will not consider another application for certification by the applicant as the bargaining agent of the employees in the bargaining unit until one year elapses from the date of this decision.
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 responding party 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.