Unionized Employees of Tenaquip v. Teamsters Local Union 419
Citation: [1997] OLRB REP. JULY/AUGUST 742 File No.: 2842-96-R Date: August 22, 1997
Applicants: Unionized Employees of Tenaquip Responding Party: Teamsters Local Union 419 Intervenor: Tenaquip Limited
Before: Bram Herlich, Vice-Chair.
Appearances: Dave Hepworth on behalf of the applicants; N. L. Jesin and Paul Dunne for the responding party; Fred Von Veh, Lynn Maxwell, John Morrison and Graham Wells for the intervenor.
DECISION OF THE BOARD
1This is an application filed pursuant to section 63 of Labour Relations Act, 1995 (the "Act") seeking a declaration that the responding party (the "union") no longer represents employees in the relevant bargaining unit of the intervenor (the "company" or the "employer").
2In its response to the application, the union asserted and filed particulars to support its claim that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application. Consequently, the union asked that the Board exercise its discretion pursuant to section 63(16) of the Act and dismiss the application. It was these allegations and this request which formed the subject matter of the hearing held in this case.
3The Board heard the evidence of 5 bargaining unit employees (3 of whom testified on behalf of the union; 2 for the applicant). There was little in the way of significant direct contradictions between the evidence of the union and that of the applicant. The employer chose to call no evidence.
4As a great proportion of the evidence was neither directly disputed nor controversial, it is unnecessary to review it in minute and excruciating detail. A cursory summary of the salient details follows.
5The two individuals most actively involved in the application were Dave Repworth, a bargaining unit employee, and Ramsay Fraser. The union initially asserted that Mr. Fraser was a member of the employer's management team. However, while the differing evidence on this point may well establish that some bargaining unit employees believed Mr. Fraser to be managerial, any such conclusion is clearly mistaken. Indeed, although it continued to urge the Board to conclude that Mr. Fraser had acted on behalf of the employer, the union, at the conclusion of the hearing, no longer argued that he is managerial. Although Mr. Fraser did not testify, the evidence regarding his actual status is clear: he is a non-bargaining unit employee; his position is in sales; sales staff are excluded from the bargaining unit.
6Mr. Hepworth testified that he sought out and secured Mr. Fraser's assistance at the earliest stages of events which culminated in the filing of this application. Mr. Fraser assisted in the preparation, production and reproduction of various documents prepared for the purposes of the application. Re also helped to explain processes and materials Mr. Hepworth found confusing. Some two weeks prior to the signing of the petitions in this case, Hepworth and Fraser prepared, posted and distributed a notice addressed to "Tenaquip Union Employees" which read as follows:
"As you are all aware there is an attempt to decertify the union in our warehouse. The reasons for this are numerous and are open for discussion if any members would like to do so. Please contact Dave Hepworth or Ramsay Fraser if you would like to persue [sic] this issue further.
Yours sincerely
Dave Hepworth
Ramsay Fraser"
7Over the next two weeks Mr. Hepworth heard nothing and had no inquiries from any bargaining unit employees in response to the above notice. On November 29, 1996 Repworth and Fraser solicited bargaining unit employees and all (but one) of the petitions filed in support of the application were signed. A brief description of the circumstances is in order.
8The company's premises cover some 67,000 square feet which are divided into three main areas. By far the largest of these is the warehouse area in which the bargaining unit employees work. There is also a relatively small area which includes the store and store office. Finally, there is a sales and office area which includes the reception area, the cafeteria, various offices and sales areas. Included in a portion of this area which is also adjacent to the warehouse is the company's boardroom.
9On November 29, 1996 Hepworth and Fraser summoned each member of the bargaining unit to the company boardroom and, in the resulting two on one individual meetings, presented them each with a petition to sign in support of this application. Eleven out of the fourteen bargaining unit employees signed (one of the petitions, however, is dated December 2, 1996). Mr. Hepworth estimated that he and Mr. Fraser spent 3-5 minutes in the individual meetings with each employee in the boardroom and agreed that the total amount of time they spent there was in the range of 45 minutes. All of the employees who testified indicated that they were summoned to the boardroom during their working hours. Mr. Hepworth was fairly certain that two of the employees (who did not testify) were summoned during their breaks.
10Mr. Hepworth testified that he never sought the company's permission to use the boardroom for the purposes of soliciting signatures. He categorically denied that there was any "deal" between him and management. Neither Mr. Fraser nor anyone on behalf of the company testified as to what conversations may (or not) have transpired between them with respect to the initiation of this application. I also note the evidence of the applicant's other witness, James Camelo, who acknowledged that he would have assumed Repworth and Fraser would have had the employer's permission to use the boardroom; he was also of the view that other employees would probably have made the same assumption.
11The application was delivered to the union and the company and filed with the Board on December 3, 1996. Hepworth and Fraser took two hours off work that day for the purposes of delivering and filing the application. Hepworth testified that he neither gave nor was asked to provide any reason for his absence.
12One final factual peculiarity