0023-98-R Labourers’ International Union of North America, Local 183, Applicant v. B.G. Schickedanz Homes Inc. and Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation, Responding Parties.
2986-99-U My Building Corporation, Deerfield-Schickedanz and Kansun Homes Limited and B.G. Schickedanz Homes Inc., Applicants v. Labourers’ International Union of North America Local 183, Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair.
APPEARANCES: J. Postnikoff for B.G. Schickedanz Homes Inc. and Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation; S. Wahl for Labourers’ International Union of North America, Local 183.
DECISION OF THE BOARD; April 20, 2000
Board File No. 2896-99-U is an unfair labour practice complaint under section 96 of the Labour Relations Act, 1995 (the “Act”) which was filed on January 10, 2000 by B.G. Schickedanz Homes Inc., Deerfield-Schickedanz and Kansum Homes Limited and My Building Corporation (the “employer”). Board File No. 0023-98-R is an application for certification which was filed on April 1, 1998. The Board issued a decision on November 24, 199 in relation to the application for certification (Board File No. 0023-98-R) and found the employer (a single employer pursuant to section 1(4) of the Act) to have violated the Act and pursuant to section 11, ordered a second representation vote. By decision dated December 10, 1999 the Board directed the second representation vote to be conducted on December 20, 1999.
The employer brought a motion in Divisional Court seeking to stay the Board’s decision dated November 24, 1999 and to prohibit the Board from conducting a representation vote on December 20, 1999. Madame Justice MacFarland heard and dismissed the employer’s motion on December 17, 1999 (My Building Corporation, Deerfield-Schickedanz and Kansun Homes Limited and B.G. Schickedanz Homes Inc. and Labourers’ International Union of North America, Local 183 and Ontario Labour Relations Board, Court File No. 859/99 reported at [1999] OLRB Rep. Nov./Dec. 1142). Accordingly, the second representation vote was conducted on December 20, 1999. Labourers’ International Union of North America, Local 183 (the “union”) won the vote 6-1, with one ballot segregated and not counted.
In Board File No. 2896-99-U, the employer is alleging that there were a number of irregularities with respect to the second representation vote held on December 20, 1999. These allegations include the failure to properly notify all eligible employees of the second representation vote, acts of intimidation and coercion by representatives of the union and the purchase of breakfast immediately prior to the representation vote for eligible employees by representatives of the union. By way of relief, the employer is seeking, inter alia, a third representation vote.
The union filed its response to the unfair labour practice complaint on January 10, 2000 in which it asserts that the employer has failed to make out a case for the orders requested and asks the Board to dismiss the application pursuant to Rule 46 of the Board’s Rules of Procedure. The union further requests that the Board proceed with the application for certification (Board File No. 0023-99-U) and issue a certificate forthwith.
I heard submissions from the parties with respect to the union’s preliminary motion on March 9, 2000. For the purposes of this decision, I rely only on the facts pleaded in the application and deem them to be true. I will now deal with each of the arguments in turn.
Were the employees in the voting constituency provided with adequate notice of the second representation vote?
The employer asserts that not all of the employees entitled to vote were provided with adequate notice of the second representation vote and as a result the Board should order a further representation vote to ensure that all eligible employees have an opportunity to vote.
Paragraphs 4 through 6 of the application pertain to the allegations of insufficient notice and are reproduced below:
The voter’s list prepared by the Labour Board contained only 9 voters and their addresses. However, there were 11 members of the voting constituency as established by the Board as at April 1, 1998. Therefore 2 eligible voters were not set out on the list of voters. Those voters are Ryan Cleveland, who was added later by hand since he attended at the vote and Ashley Jardine who did not vote. It is submitted that the notice was improper.
Furthermore, Mike Buck, John Gosse and Joseph (Giuseppe) Mandarino did not vote although eligible to do so.
It is also submitted that a new vote should be held to enable all of the eligible voters to have an opportunity to attend and vote, should they so desire. It is unfair and unjust for any eligible voter to not be given an opportunity to vote should he so desire.
Counsel for the employer contends that not all of the eligible employees were provided with proper notice of the second representation vote held on December 20, 1999 and makes reference to an incomplete voter’s list. As noted earlier, in its decision dated November 24, 1999, the Board directed a second representation vote. At paragraph 51 of that decision, the Board directed that a copy of the decision be mailed to each of the employees in the bargaining unit as of April 1, 1998 at their last known address which had been provided by the union. The list of employees provided by the union was not complete as it did not include Ryan Cleveland and Ashley Jardine. As a result, the Board’s decision was not provided to all of the eligible employees. At the hearing, counsel for the employer raised further allegations in relation to whether the Board had been provided with the correct addresses for two other employees. As these allegations were not pleaded in the application, the Board chooses to exercise its discretion and refuses to consider them.
The reasons for the failure to provide a copy of the Board’s decision to all employees were made clear at the hearing. During the hearing on August 24, 1999, the Board directed not just the union but both parties to provide the Board with current addresses of the eligible employees. The union provided the Board with addresses with respect to nine of the eligible employees. The employer did not comply with the Board’s direction as it did not provide the Board with any information regarding the addresses of the employees. It is clear that counsel for the employer misunderstood the Board’s direction and instead of submitting the requested information to the Board, he submitted it to the union. The union in turn never sent the information it received from the employer to the Board. The end result was that two individuals were left off the voter’s list and were not mailed a copy of the Board’s decision. While it is unfortunate that not all of the employees were provided with a copy of the Board’s decision, it does not bring into question the adequacy of the notice regarding the second representation vote.
Pursuant to the Board’s direction dated December 10, 1999, a Notice of Vote (Form B-60) in relation to the second representation vote was posted by the employer on December 14, 1999 at its job site where it was likely to come to the attention of its employees. Despite the posting of the Notice to Vote, counsel for the employer argued that Messrs. Cleveland and Jardine were not provided with proper notice as they did not receive a mailed copy of the Board’s decision and as they no longer worked for the employer, the Notice of Vote would not have been brought to their attention.
The first position of the union was that the employer had no status to bring forward the issue of notice as it only affects the interests of an alleged disenfranchised employee. Counsel for the union argued that the employer cannot be permitted to advance the case of such an employee. Since the Board finds that all eligible voters were provided with adequate notice of the representation vote, I propose for the purposes of this decision to assume, without finding, that the employer has status to raise the issue of notice.
Upon considering the allegations contained in the application, the Board hereby dismisses any allegation relating to Mike Buck, John Gosse and Joseph (Giuseppe) Mandarino. The employer did not raise any particulars relating to their being provided with adequate notice of the second representation vote other than stating that they did not vote. The fact that Messrs. Buck, Gosse and Mandarino did not vote does not provide any logical basis for the Board to conclude that they were not provided with adequate notice. Their failure or refusal to cast a ballot might have resulted for any number of reasons.
The Board also dismisses any allegation regarding notice being provided to Ryan Cleveland. The employer concedes at paragraph 4 that Mr. Cleveland attended at the representation vote and cast a ballot. Any issue relating to the notice he received is therefore rendered moot.
The Board notes that the employer did not claim anywhere in its pleadings that Ashley Jardine did not receive notice of the second representation vote, but rather that the notice was improper. The Board is satisfied that with the posting of Form B-60, adequate notice of the second representation vote was provided to the eligible employees. Such a finding recognizes the role of both a trade union and an employer in the certification process to bring the proceedings to the attention of the affected employees and that in some instances not every employee will receive actual notice. In B & B Electric Co., [1996] OLRB Rep. November/December 907 (upheld on judicial review by the Ontario Court (General Division) Divisional Court (Court File No. 32/97) reported at [1997] OLRB Rep. March/April 298), the Board addressed the question of what constitutes reasonable notice in the context of an application for certification. Beginning at paragraph 24, the Board noted that while actual notice to all affected individuals may not always be assured, it does not necessarily render the notice deficient:
It should surprise no one that each and every person who might possibly be affected does not receive actual notice of each and every application for certification, or of each and every representation vote which is held, in a timely way. The Board, relying as it must on the trade union and employer involved in an application for certification to do the things they are obliged by statute or directed by the Board to do so, does what it can to bring the application and proceedings in it to the attention of the person who may be affected. However, it is readily apparent that time is of the essence and the “quick vote in every case” certification system established under the Act (see Burns International Security Services Limited, [1996] OLRB Rep. March/April 192; The Corporation of the City of Toronto, [1996] OLRB Rep. July/Aug. 552 (Board File No. 2603-95-R, decision dated July 3, 1996) and it is inevitable that not every person affected will receive actual notice in every application for certification. There are any number of reasons why affected persons, generally employees, may not receive actual notice. For example, it is entirely normal, particularly in the construction industry, for persons to be absent from the workplace for vacations, medical reasons, or for other reasons. No workable certification system can guarantee that everyone affected by an application for certification will receive actual notice of the application. This is particularly true in a fast vote in every case system like the one the Board is charged with administering under the Act.
Further, this is no different from other situations in which notice is given in a manner which does not include personal service and which therefore cannot guarantee actual notice to persons whose rights may be affected. For example, various kinds of legal notices are routinely published in newspapers, and in the Ontario Reports (which are not widely read by persons who are not legal professionals). More to the point, actual personal notice is not necessarily given to everyone who may be entitled to vote in Municipal, Provincial, Federal or other elections.
Accordingly, the Board dismisses the allegations relating to the adequacy of notice of the second representation vote being provided to Ashley Jardine. The Board finds that notice of the second representation vote was adequate and in keeping with the legislative framework for the conduct of representation votes set out in the Act. In making this finding, the Board notes that it was the employer and not the employees who asserts that unfairness occurred in the circumstances. The Board also observes that the union won the representation vote by a margin of 6-1 and had Mr. Jardine voted, it would not have resulted in a different outcome in the representation vote.(See Small Fry Snack Foods Inc., [1997] OLRB Rep. Jan./Feb. 134)
Allegations of Threats, Intimidation and Coercion
- The employer has alleged that representatives of the union intimidated and threatened employees during the conduct of the representation vote and that they attempted to manipulate the employees by purchasing them breakfast immediately prior to the representation vote. Each of these allegations will be dealt with in turn.
(i) Threats and Intimidation
Paragraph 1 of the application sets out the allegations relating to intimidation and threats. Paragraph 1 reads as follows:
On December 20, 1999, prior to 8:00 a.m., the Union had approximately 5 representatives at or outside the polling station in an attempt to intimidate and coerce employees into voting in favour of the Union. Those representatives were Joao Alves, an individual named Frank and three other unnamed individuals.
The Board notes that the employer has pleaded little in the way of facts to substantiate its claim of intimidation and coercion. For example, there is no mention of what, if anything, was said by the representatives of the union to the employees, which could be viewed as threatening or coercive. It would appear that the employer is relying solely on the presence of the representatives in close proximity to the polling station as the basis for finding that the representation vote was not likely to disclose the true wishes of the employees.
When the Board is asked to asses the conduct of parties during the taking of a representation vote, the focus of inquiry is whether the conduct either destroyed the secrecy of the ballot or created a situation in which the vote did not disclose the true wishes of the employees. There are no allegations in this case concerning the secrecy of the ballot so the Board’s only focus is on whether the employees were prevented from expressing their true wishes by the presence of the five representatives of the union near the polling station.
The presence of representatives of either a trade union or an employer at a polling station during the taking of a representation vote can, in certain circumstances, give rise to concerns regarding whether the employees have been able to express their true wishes. In Associated Tube Industries Ltd., [1981] OLRB Rep. Dec. 1705, the Board found that the mere presence of management in the vicinity of a polling station, absent any evidence that the management representatives made any statements which could have been considered electioneering or propaganda, did not influence the employees who were casting ballots in a representation vote. In reaching this conclusion, the Board reviewed a number of cases in which the Board found the presence of a management representative to be inappropriate. What distinguishes those cases and the Board’s decision in Associated Tube Industries Ltd., supra, is the context in which the vote was taking place and in particular, the conduct of the representatives and not just their attendance at the polling station. Beginning at paragraph 14 the Board writes:
Counsel for the applicant urged the Board to abandon that well established approach to such matters and adopt a “wider” and “less stringent” test to assure not only that representation votes are in fact fair, but also that they are seen (presumably by all affected employees) to be fair. However, as a matter of labour relations policy, the board is of the view that the approach that it has developed over the years in its jurisprudence reflects a proper balance between the need for representation votes that can be relied upon with confidence as representing the true wishes of the employees, and the need for certainty and finality in representation votes. That is not to say that the appearance of fairness is irrelevent. The Board’s case law indicates that employee perceptions concerning the conduct of a representation vote are one of the factors to be considered along with all of the other pertinent circumstances in determining whether a particular representation vote was unlikely to disclose the true wishes of the employees. For example, in The Great Canadian Pizza Company, supra, the polling area seating arrangements (insisted upon by the owner of the Company) placed the owner, who served as the employer’s scrutineer, “side by side” with the Returning Officer while the union’s scrutineer “ended up being seated in an area of the office removed from the specific point where the ballot box, the Board’s officer and the other scrutineers were situated.” In its decision directing a new vote, the board stated: “This would cause employees to have an imbalanced perception of the conduct of the vote, and bearing in mind the juxtaposition of [the owner] and the Board’s officer, side by side, might raise doubts in employees’ minds as to the very secrecy of the ballot itself.” (A further circumstance considered by the Board was the fact that the owner “whom the employees encountered eye to eye as they came in to receive their ballot, and as they would be returning to place it into the ballat box” had previously commented to certain bargaining unit employees that supporters of the union would be fired.)
It is preferable that all persons, including union officials and members of management, who are not directly involved with the conduct of a representation vote absent themselves from the vicinity of the polling area while the vote is being conducted in order to remove the temptation to engage in electioneering and propagandizing, and to eliminate any possible objection to the validity of the vote on the basis of their presence. The presence of such persons in that vicinity during the course of the vote is a factor that must be considered by the Board in light of all of the other relevant circumstances, in determining whether another vote should be directed. Thus, the Zehr’s Market case, supra, the congregation of “up to seven” management personnel in the area immediately adjacent to the polling booths was found by the Board to be a circumstance that would tend to bring pressure on the employees who entered the booths to cast their ballots, in the context of a situation in which the employer had clearly indicated to the employees its opposition to the applicant union and had, within the week before the vote, superimposed an alternate choice of an employee association that it had informed employees it would be willing to recognize. Similarly, in Constellation Hotel Corporation Limited, [1974] OLRB Rep. Nov. 799, “the presence of management personnel in a strategic location in the vicinity of the polling area in full view of the employees as they proceeded towards the ballot box” was one of the circumstances which persuaded the Board to direct that a further representation vote be taken. However, other relevant circumstances included the visible “ticking off” of employee names on a list held by one of the members of management in question, a “shouting match” that subsequently developed in the vicinity of the polling area between those members of management and an organizer employed by the applicant union, the “cloak and dagger” scenario during which officials of the union and the employer surveyed each other’s activities on the employer’s premises, and the presence as scrutineers of relatively high ranking officials on behalf of both the union and the employer.
Although the Board prefers that all persons that all persons not directly involved with the conduct of the vote absent themselves from the vicinity of the polling area while the vote is being conducted, that is not an absolute requirement. The Board has held in a number of cases that the mere presence of extraneous representatives of one of the parties in or near the polling area will not by itself inevitably lead the Board to conclude that a situation has been created wherein the vote is not likely to disclose the true wishes of the employees; see, for example, Neelon Steel Limited, [1965] OLRB Rep. Nov. 548; and Hostess Food Products Limited, [1975] OLRB Rep. March 218. Further guidance concerning the approach that the Board applies in situations involving mere presence of a member of management in or near the polling area is provided by Scarborough Centenary Hospital Association, supra. In that case, the respondent’s personnel director (Mr. Levis) served as the respondent’s scrutineer during the first voting period. In ruling that this circumstance did not constitute sufficient grounds for directing a new vote, the Board stated (at paragraph 11):
“In the instant case the respondent’s personnel manager was present at the poll when at least four, and possibly more, of the employees who voted cast ballots. However, there were no other incidents prior to or during the conduct of the vote which might give special significance to this fact. Further, the applicant itself did not utilize a rank-and-file employee as a scrutineer. During all of the voting period Mrs. Bowman, the applicant’s executive director, acted as its scrutineer. Taking these factors into account we do not believe that Mr. Levis’ presence in the voting area for part of the time that the vote was being conducted would have likely unduly influenced employees such that they could not express their true wishes in the vote. Consequently we do not regard that as sufficient grounds for setting aside the results of the pre-hearing representation vote.
- In Neelon Steel Limited, [1965] OLRB Rep. Sept. 548 the Board rejected the argument that the presence of representatives from the trade union at a polling station prevented employees from freely expressing their true wishes in a representation vote. At page 550 the Board writes:
While the Board does not condone the failure of its Returning Officer to bring the Intervenor’s objection to the attention of Mr. Signiotetti and Mr. Grubb, the Board is of the opinion that such failure in the circumstances of this case has not prevented the employees from indicating their true wishes in the representation vote. While we are of opinion [sic] that the Returning Officer should have excluded from the polling area all persons not directly involved with the conduct of the vote, in order to remove the temptation to engaged [sic] in electioneering and propaganda, we find, in the circumstances of this case, that no electioneering or propaganda took place in the polling area.
Moreover, in the absence of evidence that the Applicant’s representatives made statements to the employees which could be construed as electioneering or propaganda and in the absence of evidence from which we could infer that their presence did in fact unduly influence the voters, we are not prepared to find, in the circumstances of this case, that the mere presence of representatives of any of the parties, of itself, would prevent the employees from indicating their true wishes on the ballots. In arriving at this conclusion we have taken into account the fact that the Intervenor’s scrutineer was the President and Business Agent of the Intervenor, and would be recognized as such by the employees in the bargaining unit.
- In this case, the mere presence of union representatives near the polling station is not sufficient in itself for the Board to find that the employees were unable to express their true wishes in the representation vote. Absent any additional evidence of statements or actions carried out by representatives of the union which could be considered coercive or threatening, the Board hereby dismisses the allegations contained in paragraph 1 of the application for failing to make out a prima facie case for a breach of the Act.
(ii) Purchase of Breakfast
Paragraph 2 of the application makes reference to the purchasing of breakfast by representatives of the union and is set out as follows:
The representatives of the Union purchased for the employees on December 20, 1999 immediately prior the scheduled time of the vote – being 8:00 a.m. - in an attempt to influence and manipulate the employees into voting in favour of the Union, despite the fact that employees were no longer employed by the employers and should realistically not have not had any genuine interest in the vote.
A trade union is permitted to attempt to persuade individuals to become a member of its organization. In reviewing those activities a trade union may employ in the persuading of individuals, the Board has drawn a distinction between salesmanship and fundamental misrepresentation, coercion, and intimidation. In Johnson Controls Ltd., [1990] OLRB Rep. June 651, representatives of the trade union paid for lunches of certain employees during its organizing campaign and had distributed T-shirts, buttons, lighters and caps to employees. The Board characterized these forms of inducement as salesmanship and found them not to be in violation of the Act. Starting at paragraph 27 the Board writes:
In the Board's opinion, the allegations are more properly characterized, not as a "non-pay", but as an "inducement" to join the union. In that sense, the prospect of "merchandise" (to use respondent counsel's term) is a "lure" enticing persons to join the union, in contrast to a "threat" made to compel a person to become a union member. On that basis, allegations of "inducing memberships" must be made in a timely fashion and are subject to the usual strictures contained in Section 72 of the Board's Rules of Procedure. In the instant case, the Board need not determine whether the allegations are timely in the circumstances as the Board has concluded that the allegations should be dismissed on their merits in any event.
The concept of an "inducement" to join a union is not new to the Board. In the context of "two-tier" initiation fees, the Board's approach is to differentiate between "salesmanship" and "fundamental misrepresentation, coercion and intimidation". As noted in Leon's Furniture, supra, "the reduced payment before certification has been viewed by the Board as a borderline tactic which has sometimes crossed the line of acceptability". The Board determines each case on the specific facts but considers the remarks themselves, the context in which they were made, the speaker, etc. (see Leon's Furniture and the cases cited therein).
The distinction between salesmanship and fundamental misrepresentation is echoed in Vogue Brassiere, supra. In that case, the Board found that the possibility of purchasing the employee's car or finding a job for her boyfriend were not made conditional on the person signing a membership card. The organizer's conduct did not exceed the bounds of acceptable salesmanship. The Board concluded that the individual voluntarily signed an application for membership "fully aware of all the material facts and what it was that she was doing". The Board's analytical approach is useful to set out here:
The issues raised by the employer's charges bring into play two fundamental principles with respect to Board certification. The Board has many times emphasized that it requires the highest standards of integrity from individuals engaged in trade union organizing, particularly in view of the "hearsay" nature of the evidence upon which the Board must rely. On the other hand, the whole basis for the Board's acceptance of hearsay evidence in this regard is to provide objective and confidential evidence of employees' wishes, without the necessity of a full investigation into the thought process of every employee in each case. The Board must continue to supervise the organizing process carefully. However, the Board has, given the nature of that process, been reluctant to impose unrealistic standards on organizers with respect to styles or degrees of "salesmanship". The test which the Board has developed has most recently been set out and considered in the case of Leon's Furniture, [1982] OLRB Rep. March 404, where the Board noted, at paragraph 11:
The Board has drawn the line of regulation between salesmanship and improper conduct at fundamental misrepresentation, coercion and intimidation.
Beyond that line, the Board recognizes that an employee's decision ultimately to sign a card can be the product of a number of factors, and the Board is not prepared to engage, as a general rule, in ex post facto analyses of what it was specifically that motivated the employee to sign in each particular case. (Compare Baltimore Aircoil [1982] OLRB Rep. October 1387.) In the absence of conduct that crosses the bounds of acceptable salesmanship, in other words, the card which the employee has signed is allowed to speak for itself.
The tolerance by the Board for "salesmanship" is reflected as well in the "hands-off" approach which the Board adopts in connection with electioneering and campaigns unless it may be concluded that a "reasonable" voter was misled: see, for example, McMaster University, [1979] OLRB Rep. July 685; Staffer-Dobbie Manufacturing Co. Ltd., 59 CLLC 18,147; Robertson Yates Co. Ltd., [1978] OLRB Rep. Jan. 30; Indusmin Ltd., [1982] OLRB Rep. Nov. 1641; Allied Signal Automotive, supra.
The Board considers that a similar approach is appropriate in the context of "inducements" (as distinct from intimidation or coercion). The Board must proceed on a case by case basis in the context of the specific circumstances. However, in deciding whether the impugned conduct crosses the boundary of acceptability, the Board must be cognizant of the realities of an organizational drive. A certification campaign depends for its success on the ability of union organizers to persuade employees to become members. Means of persuasion include meetings to discuss the advantages of unionization, the distribution of leaflets and personal contacts by in-plant organizers with their fellow employees. Visible demonstrations of support for the union through the wearing of pins and buttons are commonplace in campaigns and serve as a graphic indication of the level of that support amongst employees. The Board should be chary of circumscribing the use of such propaganda tools.
In the instant case, the union widely distributed hats, T-shirts, pens, lighters, pins and buttons emblazoned with the CAW logo. Members of the organizing committee received sweatshirts. The giving out of the items was not conditional on signing a card. The value involved was modest. In the circumstances, it could legitimately be said that a reasonable employee would have been induced to join the union in order to receive a CAW T-shirt, for example. The close nexus between the items distributed and the campaign is clearly evident in the prominence of the CAW logo on the items and the refusal of S. McKibbon's request for a T-shirt because he would not agree to wear the shirt in the plant.
The Board is not here establishing the outer parameters of acceptability. In determining whether the union's conduct crosses the line of acceptable "propaganda" into the outright "buying of memberships" referred to in passing in Calvano Lumber, supra, the Board would consider such factors as whether the distribution of the articles was conditional upon signing a membership card, whether the value of the goods was excessive and whether the nexus between the items and the union's campaign was close so that their "propaganda value" to the organizing drive was clear. The Board does not characterize the union's conduct in handing out the various articles in the instant case as crossing that boundary. As well, the Board does not regard it as objectionable that the union picked up the tab for coffee and breakfast for the organizing committee and the occasional employee who attended the informal committee meetings to ask questions of the union officials. Again, the Board is not here demarcating the outer limits of propriety where the union provides what might generically be referred to as "hospitality".
The level of membership support would entitle the applicant to automatic certification unless the Board exercised its discretion under section 7(2) to direct that a representation vote be taken. For the reasons given, the Board does not view the membership evidence as "under a cloud" so as to require the confirmation of a representation vote.
In S.G.T. 2000 Inc., [1999] 53 CLRB (2d) 256 the Canadian Labour Relations Board (“CLRB”) held that the purchasing of meals for drivers constituted salesmanship and that it did not invalidate the membership evidence submitted by the trade union. After adopting the preceding quotation from Johnson Controls Ltd. supra, the CLRB held as follows:
The Board agrees with the OLRB’s reasoning and considers it applicable in the instant case. It was not shown at the hearing that the union’s actions could be deemed to be harassment, coercion or intimidation; paying for the meals of a few employees, whether or not they decided to become union members, constitutes at most “salesmanship” by the union.
The Board finds that in this case the purchase of breakfast by representatives of the union does not amount to intimidation, harassment or coercion. The actions of the union simply constitute salesmanship, which is permitted under the Act. Accordingly, the Board dismisses the allegations contained in paragraph 2 of the application for failing to make out a prima facie case of a breach of the Act.
Having disposed all of the allegations contained in the application, the Board hereby dismisses Board File No. 2986-99-U. As a result, there is nothing to
prevent the Board from processing the application for certification (Board File No.
0023-98-R).
- In its decision of December 10, 1999, the Board found the following bargaining unit to be appropriate for collective bargaining:
all construction labourers in the employ of B. G. Schickedanz Homes Inc., Deerfield –Schickedanz and Kansun Homes Limited and My Building Corporation in all sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the union.
A certificate will issue to the union.
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 the "Notice of Vote and of Meeting" posted previously. These copies must remain posted for a period of 30 days.
“John Morgan Lewis”
for the Board