Canadian Health Care Workers (C.H.C.W.) v. The Stratford Shakespearean Festival Foundation of Canada, 2000 CanLII 11899

ONTARIO LABOUR RELATIONS BOARD

2090-99-R Canadian Health Care Workers (C.H.C.W.), Applicant v. The Stratford Shakespearean Festival Foundation of Canada, Responding Party v. Service Employees International Union Local 220, Intervenor

2224-99-U Canadian Health Care Workers (C.H.C.W.), Applicant v. Service Employees International Union and Service Employees International Union, Local 220, Responding Parties v. The Stratford Shakespearean Festival Foundation of Canada, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and

D. A. Patterson.

APPEARANCES: Joanne McMahon, Joe Daignault and Mike Groom for the applicant; Stephen Kraskinsky, Jim Pare and David Eales for the responding parties; Kristen Lopes and Shelley Stevenson for the intervenor.

DECISION OF PATRICK KELLY, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; April3,2000

1. Board File No. 2090-99-R is a displacement application for certification filed pursuant to the Labour Relations Act, 1995 (the "Act"). Board File No. 2224-99-U is an application filed pursuant to section 96 of the Act, alleging violations of sections 5 and 76 ofthe Act.

2. This matter carne on for hearing on November 29, 1999. At the outset, counsel for the responding party ("SEIU") made a preliminary motion, requesting the Board either to dismiss the applications on the basis that the applicant's pleadings in Board File No. 2224-99-U failed to disclose a prima facie violation of sections 5 and 76 of the Act; or to not inquire further into the file on the basis that it would serve no good labour relations purpose to do so.

3. The parties agreed that the Board should deal with the preliminary motion before proceeding further.

Background

4. The applicant ("CHCW") conducted an organizing drive with the employees of The Stratford Shakespearean Festival Foundation of Canada over the course of several months in 1999. These employees were represented by SEIU at the time, and were covered by a collective agreement. During the collective agreement's "open period", CHCW applied for certification and obtained from a differently constituted panel of the Board a decision dated October 27, 1999, ordering a representation vote in which voters would determine whether they wished to be represented by CHCW or SEIU The vote was held and counted on October 29, 1999. Counsel for the applicant contended that the applicant's scrutineer at the vote inquired of the attending Labour Relations Officer as to the possibility of sealing the ballot box, and that it was made clear to the scrutineer that the box would not be sealed. The results of the vote were 19 to 8 in favour ofSEIU. The Certification Worksheet completed after

the taking of the vote on October 29, 1999 by the Labour Relations Officer who conducted the vote, and signed by all the pa1iies, indicates that CHCW intended to file an unfair labour practice complaint in relation to the campaign leading up to the vote.

5. The facts alleged by CHCW in its complaint against SEIU can be summarized as follows. CHCW alleges that SEIU representatives circulated, in writing and/or orally, a number of misrepresentations or inaccuracies or outright falsehoods concerning the operation ofthe CHCW constitution, the legal impact that the displacement ofSEIU would have on the employees in question, and the character of the CHCW leadership. In addition, it was alleged that SEIU engaged in the intimidation of the employees by appearing at, and disrupting a CHCW meeting to which employees were invited the day before the taking of the representation vote.

6. Of particular concern to CHCW is the allegation that SEIU representatives made false and defamatory statements concerning CHCW's President, Mr. Joe Daignault, statements that suggested he, as a former SEIU representative, stole money from SEIU members which resulted in his discharge from SEIU. By decision dated January 31,

2000, the Board directed CHCW to file with the Board and deliver to SEIU particulars with respect to these concerns. Counsel for CHCW complied with this direction, and counsel for SEIU responded to the particulars filed.

7. The particulars filed by CHCW asse1i that the accusations concerning Mr.·Daignault were communicated on October 26, 1999, three days prior to the representation vote, by an SEIU representative. The communication was by way of conversation, and was made to a single employee, who appears at the time to have taken a position in support of CHCW and against SEIU in the campaign. During that conversation, the SEIU representative claimed, among other things, to have heard that

Mr. Daignault was a mafia member, and that Mr. Daignault had been fired from other unions, including the SEIU, for fraud. The employee to whom these things were told attempted to rebut the accusations by showing copies ofMr. Daignault's resignation letters, which were dismissed by the SEIU representative as forgeries.

8. CHCW alleges further that on October 27, 1999 the same employee had a conversation with a different SEIU representative who also implied that Mr. Daignault was a member of the mafia and had been dismissed from SEIU for theft. The employee showed the SEIU representative Mr. Daignault's letter of resignation, to which no reply was offered.

9. CHCW also particularized a further conversation that was aiieged to have taken place on the day of the representation vote, October 29, 1999, between the same employee and the SEIU representative he had talked to on October 27, 1999. The conversation on this occasion had nothing to do with the character or associations of

Mr. Daignault.

10. The applicant also urges the Board to consider particulars related to allegations CHCW made against SEIU in another matter (Board File No. 2222-99-U), involving a different SEIU local and a different employer. In that file, it was alleged that, in front of a number of employees, the SEIU local president accused Mr. Daignault of having been dismissed from SEIU for "misappropriation of funds".

11. Finally, the applicant raised allegations concerning the circulation by SEIU supporters of similar innuendo with respect to Mr. Daignault, after the representation vote was taken. The applicant also sets out some facts which suggest that some employees, after the vote was taken, expressed fear about reprisals for being seen to support CHCW.

The Arguments

12. Counsel for SEIU contended that the Board should dismiss these applications on two bases. The first of these is the timing of the unfair labour practice complaint. The complaint was filed on November 5, 1999, some five business days after the vote was conducted. While this is within the time limits set out in the Board's Rules ofProcedure and the panel's decision of October 27, 1999, counsel for SEIU submitted that complaints by a party concerning the conduct of another party in a pre-vote

campaign must be filed before the vote is counted, otherwise the Board may conclude

that the complaints really relate to the result of the vote, and not the impugned conduct. Counsel submitted a number of cases as authority for that proposition: United Plastic Components, [1984] O.L.R.B. Rep. Nov. 1636; Concord Metal Stampings, [1987] O.L.R.B. Rep. Jan. 34; Kitchener Beverages Limited, (1986] O.L.R.B. Sept. 1234;

Chateau Gardens, [1977] O.L.R.B. Rep. Jan. 12; Northfield Metal Products, [1989] O.L.R.B. Rep. Jan. 57.

13. The second basis advanced by counsel for SETIJ for dismissing the application relates to the nature of the contest between two or more trade unions vying for the right to represent employees. Such campaigns are often vigorous and free­ wheeling. The Board, counsel submitted, does not ordinarily involve itself in policing these contests.

14. Counsel for SEIU submitted that CHCW has traditionally demonstrated the ability to respond to what it considers untruthful, misleading or inflammatory allegations of other trade unions in "raid" situations. Counsel referred the Board to a series of documents alleged to have been created by CHCW for use in other campaigns which, in counsel's submission, demonstrate that CHCW "gives as good as it takes" in these contests.

15. Finally, counsel for SEIU referred us to Grand River Hnspital

Cmporation (unreported decision of the Board of September 12, 1997: Board Files

1019-97-R; 1020-97-R; 1228-97-U). This case involved the same two trade unions as in the present case. They were, as in this matter, engaged in a "raid" campaign, the CHCW seeking to wrest bargaining rights from the incumbent. CHCW raised concerns about that campaign after the counting of the votes which resulted in it losing its application. The coneems (as set out in the CHCW pleadings), counsel for SETIJ argued, were very similar to those raised in this case. For example, it was alleged there, as here, that the incumbent trade union threatened employees with the prospect of lost pay and benefits.

It was also alleged in that case, as in this one, that there were inaccurate claims

concerning the effect that a successful displacement application would have on the subsisting collective agreement. And finally, there were allegations that the incumbent trade union had disparaged the character of CHCW representatives, including the CHCW President, who, it was claimed, was a member of the mafia. Faced with these allegations, the Board dismissed the matter on the basis that no prima facie case of an unfair labour practice had been established. The Board also expressed skepticism with respect to the timing of the filing of the complaint.

16. Counsel for SETIJ argued that the facts in Grand River Hospital Corporation case are on all fours with the present case, and that on the strength of this and the other cases submitted, the Board should dismiss the application without a hearing.

17. Counsel for CHCW argued that the issue oftimeliness could not defeat the application because everyone was aware, on the day of the representation vote, of CHCW's intention to file a complaint concerning the campaign. Having done so within

the five day period following the vote, no skepticism should arise concerning CHCW's motives in filing the application. It would not be reasonable, counsel argued, to expect that CHCW could have filed a complaint before the vote. As for sealing the ballot box, it was counsel's contention that there was evidence that the CHCW scrutineer made inquiries in this regard of the Labour Relations Officer, and that it appeared to the scrutinecr the ballot box would not be scaled.

18. Counsel for CHCW also argued that the Grand River Hospital Corporation case was distinguishable from the case before us. In response to the Board's question on the distinguishing features of that case, counsel for CHCW maintained that the essential difference was one of facts, and in particular, the allegation in the present case that the CHCW President is said to have stolen money from uniori members in his capacity as the then representative of SEIU. Counsel argued that this

type of allegation differs from an accusation that one belongs to the mafia. An allegation by a former employer (SEIU) that the current CHCW President stole membership funds

is one, counsel argued, that employees, with no further knowledge of the facts, might believe to be have some substance because it was allegedly uttered by a person or persons in a position to have knowledge of the facts. Counsel argued that employees given such false information would not be in a position to be able to analyze it and decide its merits, or the lack thereof. Thus their section 5 freedom to join a union of their choice would have been thoroughly compromised.

19. Counsel submitted that, unless the Board inquires into this case, trade unions, and SEIU in particular, will believe they have carte blanche to engage in virtually any kind of behaviour in the heat of representation campaigns. A line has to be drawn, counsel urged, and that line cannot be ascertained without the Board hearing the evidence in this case. In drawing that line, counsel urged the Board to establish a single standard

of behaviour applicable in the course of organizing campaigns to trade unions and employers alike.

Decision

20. We tum to a consideration of the argument by counsel for SEIU pertaining to the substance of the pleadings set out in the application. Counsel, it will be recalled, urged the Board to dismiss the application on the basis that the pleadings do not make out a prima facie case of a violation of the Act, or on the basis that there is no sound labour relations reason to inquire further into the matter..

21. In Kraft Canada Inc., [1997] OLRB Rep. March/April239, the Board

dealt with claims that the employer had misrepresented the statutory "freeze" provision of the Act to employees in the midst of a representation vote ordered pursuant to a

certification application. The Board made the following observations at paragraph 17 of the decision:

17. 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.

22. One of the exceptions to the general rule that the Board does not intervene to referee false allegation disputes, occurs when the party complaining about the campaign conduct of another has had no opportunity or ability to respond to the false allegations ofthe other. As the Board in McMaster University, [1979] OLRB Rep. July

685 noted at paragraph 11 of the decision:

11. 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 favour 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.

[emphasis added]

23. The other exception to the general rule of non-intervention by the Board in matters of this kind, is related to the first exception, and that is in circumstances where

the Board determines that the wishes of the employees who are the subject of the contest are compromised by the false allegations to the extent that the representation vote is not an accurate gauge of the voters' ability to exercise their "critical faculties".

24. The Board bas taken this approach in cases where the allegations are of improper conduct, such as was the case in Crock & Block Restaurant, [1984] OLRB Rep. Jan. 19, where, following the loss of a close representation vote in a termination application, the applicant alleged that the incumbent trade union had told the employees that the employer was behind and supportive of the applicant's application. The

applicant alleged that it had been defamed and, as a result, asked the Board to order a

second representation vote. At page 21 of the decision, the Board stated:

... As those decisions indicate, the Board does not normally interfere with a vote preceded by propaganda which is speculative, exaggerated, mis-leading or even false. The Board recognizes that in representation votes as in other electoral processes voters must be presumed capable of assess}ng critically the conflicting arguments often presented by the interests which compete tor their votes.

In our unanimous view, the statements here attributed to the union's representatives are not of such a nature that the critical faculties of employee voters would have been overpowered.

We conclude, therefore, that we would not order a new vote even if the applicant proved all she has alleged.

We do wish to comment specifically on the allegations made against the integrity of the applicant. These have been described

by her counsel as defamatory both of the applicant and her employer. We have no jurisdiction to award compensation for or punish publishers of defamatory statements. That jurisdiction

lies elsewhere. Our concern is with a vote in which employees were asked to say whether they wished to continue to be represented by the respondent. lt was not a vote of confidence or non-confidence in the applicant. While we cannot say that these allegations could not have influenced employee voters in some way, the influence is of the same sort as that created by allegations that dues dollars go to support fat cat American trade union leaders, or like attacks on employer malevolence.

However unpleasant or even actionable elsewhere, the Board

will not be quick to control the use of such propaganda, because the justification for so doing is unclear and the potential restraints undue. In the result, then, the vote ofNovember 12,

1983 will stand.

25. In respect of the allegations concerning SEIU's alleged inflammatory statements regarding the CHCW President, the particulars filed and referred to above allege that only one employee was told of the rather bald allegations of theft and fraud. The employee in question, moreover, appears to have been a CHCW supporter who, apparently, did not for a moment believe the accusations being directed at Mr. Daignault. In fact, ht: had in his possession copies of Mr. Daignault's resignation letters, and offered them as proof that the accusations were false. CHCW not only had an opportunity to respond, but in fact, one of its supporters took steps to respond to what he and the CHCW considered a blatant lie. Presumably CHCW could have brought the letter to the attention of other employees if it feared that SEIU's allegations concerning Mr. Daignault had spread throughout the bargaining unit. CHCW knew as early as October 26, 1999 that

the alleged accusations were being made. The acccusations were allegedly repeated on

October 27, 1999. To the extent the employees had formed any perception of the issue (and the pleaded facts suggest that only one employee heard the allegations, and did not believe them), it would appear that CHCW had the time and the means to challenge that perception before the taking of the vote on October 29, 1999. However, there are no further details of any such corrective action having been taken.

26. The Board notes that no employees sought to intervene in CHCW's certification application or unfair labour practice c;:omplaint. Moreover, the Board observes that, given a reasonable period of time to particularize the allegations which were of most interest to the Board, CHCW provided little of any substantial information that would cause the Board concern.

27. The Board gives no consideration to the allegations CHCW raised concerning the alleged conduct of a different SEIU local in a displacement application dealing with a different employer. Those allegations are neither relevant, nor do they shed any light as to how they could have affected the voters in the campaign in the present case. Nor is the Board inclined to give any consideration to the allegations of post-vote comments concerning Mr. Daignault, as these comments could not have influenced voters prior to the vote.

28. Have the employees' true wishes been so compromised that the results of the vote are not an accurate gauge of the voters' critical faculties? In the submission of counsel for CHCW, the single most distinguishing feature ofthis case compared to the facts in Grand River Hospital Corporation is the allegation of Mr. Daignault's dismissal for theft levelled by a party who employees would believe was in a position to know the truth of the allegation. In Grand River Hospital Corporation, as in the present case, CHCW alleged that the incumbent union had claimed the CHCW President was a member ofthe mafia. The Board dismissed CHCW's complaint assuming, without finding, its pleadings to be true. The panel in this case is not convinced that the allegations by CHCW in the matter before us are sufficiently distinguishable to conclude that the true wishes of the employees of the Stratford Shakespearian Festival Foundation of Canada were not reflected in the results of the representation vote. Even if we were to find that the statements were made, bald and isolated assertions of theft and fraud made

to an employee uninclined to believe those assertions would not cause us to overturn the results of the vote.

29. Notwithstanding this conclusion, however, the Board wishes to highlight its concerns with respect to the increasing vitriol evident in campaigns between the parties. In particular we are concerned that the Board's earlier decision in Grand River Hospital Corporation and this one may be seen as sending the "wrong message". The message is not that such conduct is acceptable; rather, it is reprehensible and, depending upon the circumstances, may lead to the ordering of a new vote. (Any such vote, it should be noted, would be held against the background of an unfair labour practice finding having been made against the previously successful party). The principle reason that that has not occurred here is not the quality or character ofSEIU's alleged conduct but its timing and extent. In future cases, the responding party may not be so lucky and the Board may be less willing to permit what can be described as a developed style of campatgmng.

30. The disposition of Board File 2224-99-U resolves the only outstanding issue in the certification application in Board File No. 2090-99-R.

31. On the taking of the representation vote directed by the Board in the certification application, not more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.

32. The application for certification is therefore dismissed.

33. 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 ofthis decision.

34. 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.

35. Meeting and hearing dates set previously are hereby cancelled.

36. The responding party employer is directed to post copies of this decision immediately, in a location where it will likely come to the attention of employees affected in these matters. These copies must remain posted for a period of 30 days from the date of this decision.

Patrick Kelly for the majority

CONCURRING OPINION OF BOARD MEMBER J. A. RUNDLE; April 3, 2000

1. This is as ugly an inter-union cat fight as one can imagine. I agree with Vice-Chair Kelly when he characterizes the behaviour ofthe applicant and responding trade unions as unacceptable and reprehensible. These are so-called sophisticated parties who should be admonished for their conduct and for trying the Board's resources in adjudicating what cannot honestly be termed higher than a squabble.

2. Let us remember why we are here. The Board is, among its many roles, a supervisory agency for certification applications, and these include legitimate incursions by one union into the territories of an incumbent during the open period of a collective agreement. Various and sundry tactics can be, and are, used in attempting to persuade bargaining unit members to join one union or another. The Board should not be required to enter the fray of campaigns, even as arbiter of good manners.

3. The Board must, however, oversee the activities of workplace parties to ensure itself that the protections and entitlements of the Labour Relations Act, 1995 are not misconstrued or otherwise miscommunicated to its stakeholders under any circumstances.

4. Finally, let us remember the tenor of this spat when a trade union next brings allegations of impropriety or the inappropriate demeanor of an employer during an organizing campaign.

Judith Rundle