2853-99-U Permacon Ottawa a Division of Groupe Permacon Inc., Applicant v.
Labourers’ International Union of North America, Local 527, Responding Party.
1036-98-R Labourers’ International Union of North America, Local 527 Applicant v. Permacon Ottawa, A Division of Groupe Permacon Inc., Responding Party.
BEFORE: M. A. Nairn, Vice‑Chair.
APPEARANCES: John D. Lewis for Groupe Permacon Inc.; Daniel Randazzo for Labourers’ International Union of North America, Local 527.
DECISION OF THE BOARD; July 5, 2000
Board File No. 1036-98-R is an application for certification. Board File No. 2853-99-U is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging a violation of sections 76 and 2(7) of the Act. That application has been brought by Groupe Permacon Inc. (the “employer”). It relies on section 11(2) of the Act and requests, by way of remedy, that the Board order a new vote in the certification application.
In its response to the section 96 application, the Labourers’ International Union of North America, Local 527 (the “union”) has asserted that the application ought to be dismissed for want of a prima facie case. Because of the somewhat unusual circumstances leading up to this application that preliminary matter was listed for hearing. The matter convened and I heard the parties’ representations on that issue.
The parties are agreed as to the test that I ought properly apply in considering the motion to dismiss Board File No. 2853-99-U without inquiring into the merits. That test has been set out in a variety of cases and was summarized as follows in Board of Governors of Laurentian University, Sudbury, Ontario, [1989] O.L.R.D. No. 794 (File No. 2414-88-U), decision of the Board dated April 24, 1989 at paragraph 15:
For purposes of this decision, the Board accepts as true and provable all the submissions of the complainant, both oral and written, and those factual matters specifically agreed to by the parties. The two motions before the Board are that this complaint be dismissed because it fails to disclose a prima facie case, and in the alternative, on the grounds of delay in filing the complaint. Insofar as a prima facie case is concerned, in order for a complaint to proceed to a hearing on the merits, the Board must be satisfied that the allegations, accepted for this limited purpose as true and provable, could arguably lead to a finding of a breach of the Act with respect to the sections claimed to have been breached, and could arguably lead to the remedy requested by the complainant. If the Board is not satisfied that, notwithstanding all the allegations raised by a complainant, there is no arguable chance that the complaint will succeed, either with respect to a finding that a breach of the Act has occurred, or with respect to granting the remedies requested by the complainant, then the complaint will be dismissed without proceeding further…
The parties disagree as to whether or not in considering the motion I may have regard to the application for certification and the pleadings in earlier unfair labour practices filed by the union. The employer asserts that I can have no regard to the material filed in those applications. I disagree. The employer has referenced those applications in its application and seeks, at least in part, to rely on them. For example it seeks to specifically rely on the results of earlier votes held with respect to the application for certification and the fact of the settlement of two prior unfair labour practices brought by the union. That material is part of the Board’s record of proceedings. Nor is it material that is in dispute between the parties. The request for relief under section 11(2) is only available in the context of an outstanding application for certification. I see no basis on which I am properly precluded from reviewing those Board files in the context of considering this motion.
That background is useful in order to understand the parties’ current circumstances. This chronology is not in dispute. For purposes of the motion I have assumed, without finding, that the employer’s pleadings are true and provable. I have then asked whether, given that assumption, the facts pleaded make out an arguable case for the remedy requested.
The union filed its application for certification on June 15, 1998. A vote was ordered by Board decision dated June 18, 1998. That first vote was held on June 22, 1998. The union lost the vote. The union however filed an unfair labour practice complaint relying on then section 11 of the Act (Board File No. 1139-98-U). I take judicial notice of the fact that following the filing of the unfair labour practice complaint, that provision was changed by the passage of Bill 31. The union was no longer entitled to seek to be automatically certified pursuant to section 11 of the Act. If it were successful in establishing its claim, its remedy would be limited to the holding of another vote with perhaps certain other remedial conditions attached.
That complaint alleged, inter alia, that a member of management had held a “captive audience” meeting with employees the day after the union filed the application for certification. The union alleged that employees were told by a member of management that, if the plant unionized, part of it would close and move to Montreal. It was also alleged that the employer had stated that there would be job loss if the plant unionized. Another allegation was that a letter had been distributed to employees on behalf of the employer stating that it would close the plant and/or transfer work if the union were successful. In its response to that application, the employer did not deny the fact of a meeting or distribution of a letter. It vigorously denied the nature of the conversation alleged and any assertion that the letter had been distributed by or on behalf of the employer.
The parties settled that application without any admission of wrongdoing by agreeing to hold a second representation vote. That second vote was held on or about November 17, 1998. The union again lost the vote although by a slightly smaller margin. Once again the union filed an unfair labour practice application relying on section 11 of the Act (Board File No. 2916-98-U). In this second complaint the union alleged, inter alia, that the day prior to the holding of the second vote, the employer allowed two employees to hold a “captive audience” meeting. The application further alleged that the General Manager had threatened an employee with the loss of his job for supporting the union. The employer filed a response denying all allegations of wrongdoing. Some months later the parties settled that application without any admission of wrongdoing. The settlement included the agreement to hold a third vote.
The third vote was held on December 10, 1999. The union won that vote by almost the same margin that it had lost the second vote. The employer then filed this unfair labour practice complaint relying on section 11(2) of the Act and seeking a fourth vote.
Both parties have relied on section 11 of the Act in the course of these proceedings. It provides as follows:
(1) Upon the application of a trade union, the Board may order another representation vote in the following circumstances:
An employer, employers' organization or person acting on behalf of an employer or employers' organization has contravened the Act.
The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.
The trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.
(2) Upon the application of an interested person, the Board may order another representation vote in the following circumstances:
A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.
The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.
(3) The Board may consider the results of a prior representation vote when making a decision under this section.
(4) Subsections 10(1) and (2) do not apply with respect to a prior representation vote if a new representation vote is ordered under this section.
(5) Without restricting its powers under section 96, the Board may do anything to ensure that a new representation vote ordered under this section reflects the true wishes of the employees in the bargaining unit.
That section sets two prerequisites to its application. First, there must be a finding that the Act has been violated, and second, it must be established that the result of that violation is that the earlier vote did not likely reflect the true wishes of employees regarding union representation.
- In support of its request for relief, the employer relies on the following allegations. On or about December 3, 1999 and just prior to the third vote, the union is alleged to have distributed a leaflet to employees in the proposed bargaining unit. That leaflet contained certain statements which the employer asserts violate sections 2(7) and 76 of the Act. The first statement relied on allegedly provides:
Throughout this campaign, your employer has used intimidation to scare you into not voting for the union. They have said that the plant will close down. Permacon’s other plants are unionized and they didn’t close down. (emphasis in original)
The employer denies the assertion of intimidation and any threat to close down and argues that the union was “specifically using false information to intimidate or coerce to compel the employees to vote for the Union”. The employer argues that the statement expressly or implicitly conveys the message that the union would be able to stop the plant from closing down. The only proper characterization of this statement, according to the employer, is that the union was threatening employees’ job security and seeking to convey that voting for the union would be the only way for employees to save their jobs.
The leaflet also allegedly contained these statements:
During our discussions with Permacon, the Company offered the Union $10,000 to walk away from you and stop trying to represent you. The Union said No! This campaign is not about what the Union can get out of it, it is about protecting you and your rights as a worker.
The Company is willing to give the Union $10,000 and spend thousands $$$$$ more to fight the Union rather than improving your wages, benefits, working conditions including job security.
The employer asserts that the $10,000.00 amount was a settlement offer made to the union, which was rejected. The employer asserts that the offer was confidential and without prejudice to either party, and that the union has breached the confidentiality of the parties’ settlement discussions in order to use the information to coerce the employees to vote for the union. Further, the employer asserts that the union should not be allowed to benefit from its breach of confidentiality given the strong policy reasons to treat without-prejudice settlement discussions as confidential.
Dealing first with the disclosure of the offer to settle, there is, I find, no basis for concluding that the disclosure could make out an arguable case for a violation of section 76 of the Act. The employer argued that this aspect of its claim should be interpreted in light of section 2(7) of the Act, which identifies promoting the expeditious resolution of workplace disputes as one purpose of the Act. The employer acknowledges that section 2(7) does not create rights and cannot therefore form the basis of a violation of the Act. The employer relies on section 76 and asserts that the only reason the offer was disclosed in the leaflet was that the union considered the information to be detrimental to the employer and hoped to gain a tactical advantage by disclosing it. The employer asserts that it was coercive in the sense of trying to compel employees to vote for the union on the basis of a negative view of the employer based on information that should not have been disclosed.
To the extent that any implicit confidentiality attaches to an offer to settle, it is in regard to the trier of fact. The cases relied on by the employer speak to confidentiality only in that context. The union was not seeking to place the offer before the Board as a factor to persuade the Board that the employer had acted improperly. The parties did in fact reach a settlement. The offer made during those settlement discussions was disclosed to those persons directly affected by the outcome of the application for certification, the employees. The union is entitled to advance claims on behalf of employees to protect both their individual and collective rights in a certification proceeding. There is no breach of the Act in disclosing an offer made to settle an application for certification and an accompanying unfair labour practice complaint to those persons who are directly affected. Further, even accepting that the union hoped to gain a tactical advantage by the disclosure of the offer, any such perceived advantage does not equate to coercion or intimidation of the employees. It is at most a sales pitch designed to sway voters into supporting the union.
Thus I find that even assuming the facts as pleaded in this part of the application to be true and provable, there is no arguable case that the disclosure of the settlement offer would be found to constitute a violation of section 76 of the Act. That aspect of the complaint is therefore dismissed for failing to make out a prima facie case for the remedy requested.
I turn then to the remaining allegation. The impugned portion of the leaflet states that the employer has intimidated employees in an attempt to have them vote against the union. It states that the employer has said that the plant will close down. The statement advises that other of the employer’s plants are unionized and did not close down. What is a fair reading of the message conveyed?
The employer asserts that these particulars can constitute a violation of section 76 of the Act as they create a subtle but effective threat to employees. That threat, it is alleged, is one relating to employee’s job security, a matter that the Board has always taken very seriously. Section 76 provides:
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
The employer argues that the Board has found the use of threats of employment by either an employer or a trade union to be a breach of the Act when, as the employer describes it, they “play the job security card”. The cases referring to employer use of an employment threat are of little assistance, as an employer has the ability to effect a threat relating to job security. It can terminate someone’s employment or close down an operation. The union has no such ability and one must consider the impugned words in that context. I was referred to Intermodal Marine Surveys Ltd. [1979] O.L.R.B. Rep. April 321; Aurora Steel Service Limited, [1986] O.L.R.B. Rep. March 310; Chemtrusion Inc. [1979] O.L.R.B. Rep. December 1150; and Covello Brothers Limited, [1989] O.L.R.B. Rep. February 119 as cases involving alleged union misconduct. While these were all cases arising out of applications for certification filed pursuant to a card-based system of certification, the employer asserts that the same principles properly apply to establish a violation of the Act under a vote-based system of certification. It is not necessary for me to finally conclude anything in respect of that assertion in the circumstances here.
In Intermodal Marine Surveys Ltd. the majority of the Board disregarded the membership evidence filed by the applicant in its application for certification and dismissed the application. The majority found that a threatened loss of job is intimidatory and contrary to then section 61 of the Act. In that case the union had told employees that if the employees did not sign a union membership card they could lose work. The union referred to another site where it had not been certified and the employer no longer held the contract for the work. The Board found these statements to be improper as they conveyed the message that a failure to sign a card would result in the loss of employees’ jobs.
In Aurora Steel Services Limited, supra, the Board found that a union representative had told at least two employees that if they did not sign cards in support of the union they might find themselves out of work. This statement was made in a context where that same representative had expressed the view to the employees that once the applicant was certified, employees would be able to vote on whether the company would retain unpopular employees. The Board held that the use of threats of loss of employment by either an employer or trade union had no place during the course of an organizing campaign and ordered a vote to obtain the “confirmatory views of employees”.
In Chemtrusion, supra, a representative of the union was found to have told employees that anyone who did not sign a union card would be fired when the union got in. While the Board noted that the Act recognizes that a collective agreement may make union membership a condition of employment, such a requirement can generally only be included in a collective agreement after a clear majority of the employees have voluntarily selected the trade union as their bargaining agent. There was no such qualification in this case, and the Board concluded that the statement constituted a threat of loss of employment and dismissed the application.
The decision in Covello Brothers, supra, speaks to the test that the Board applies. The Board does not consider the individual subjective responses of employees to statements alleged to be threatening or coercive. To do so would unduly jeopardize those employees’ interests in maintaining the confidentiality of their preference with regard to union representation and would result in unnecessarily lengthy and difficult litigation. The Board considers how a reasonable employee of ordinary conviction would respond to any alleged improper statement. (see para. 17). In Covello Brothers, supra, the alleged threatening statement was that the union would picket the job site and shut it down because the employer was not using union members. The statement was not impugned by the Board because it was uttered, not by a union representative, but by another employee who had no control over the union’s conduct.
It is the employer’s position that by inserting the issue of a plant closure, under the guise of an employer-attributed statement, the union has deliberately provided a false or misleading statement. Further, the employer asserts, that by providing that false and misleading statement, the union specifically put the issue of the employees’ continuing job security in the forefront of employees’ minds. Finally, the employer asserts that by then including the last sentence in bold print, an average reasonable voter, in reading the statement, would conclude that the message conveyed was that the way for employees to save their jobs and to stop the plant from closing was be to become unionized.
One need review the employer’s position carefully to parse the logic. What is the alleged threat? In order to be consistent with earlier cases where the Board has found a threat to job security by a union, the impugned statement must be read as saying “if you vote against the union, the plant will close” (as in Intermodal, supra, for example, “if you don’t sign a card, you could lose your job”).
In each of the cases referred to the Board looked to the context of the statement in order to determine whether it could be said to be intimidating or coercive. Section 76 deals with conduct that is intimidating and coercive and which seeks to compel a result. Promises of a benefit are not caught by section 76 and the application of this section is to be distinguished from the protections afforded by sections 70, 72 and 73 of the Act. The Act recognizes that employers cannot make promises in order to influence employee choice. Unions however may well make promises as part of their organizing campaigns in an attempt to convince employees of the benefits of trade union representation. In the instant case, when the statement at issue is placed in the known context of the proceedings between these parties, it cannot be said to be one of intimidation or coercion. The statement is distinguishable from those made in the cases on which the employer relies.
This statement has been made in a context where the union has alleged that the employer has, during the organizing campaign, threatened to close the plant if it becomes unionized. Those allegations were never tested as the parties settled the formal complaints. However it is reasonable to assume that employees were aware of the allegations.
Even were that not a reasonable assumption in the circumstances, the statement asserts that the threat, if any, is one from the employer. It asserts that the message from the employer is vote against the union or suffer the consequences. This result (keep the plant open by voting against the union) is of course counterproductive to the union’s interest. Yet the union makes the assertion. Why? Because such a result potentially does lie in the control of an employer.
The employer asserts that the union promoted the idea that if employees supported the union, they would not lose their jobs, the plant would not close; that voting for the union would ensure a job. That latter characterization is not a threat. At best it may be a promise. More reasonably, in the circumstances of the statement as a whole, the union seeks to reassure employees by saying, even if this employer threat has been made, don’t worry, its other plants are unionized and have continued to operate. Alternately, the union is providing reassurance that it can respond to an improper closure. The union is accurate in asserting that the Board has ordered production to be returned to a plant when operations have been closed for reasons that have to do with avoiding the union. See for example, Rapid Transformers Ltd. [1999] O.L.R.B. Rep. July/Aug. 675; Plaza Fibreglas Manufacturing Limited [1990] O.L.R.B. Rep. Feb. 192.
Even assuming the allegation against the employer to be false and that the union put the employees’ continuing job security in the forefront of employees’ minds, at most, the union has sought to provide reassurance to employees that the employer is not likely to “play the job security card”, or alternatively, the union could respond if it did. The leaflet could have been more technically accurate by stating that “the union has alleged” that the employer had intimidated employees by threatening to close if unionized. However the omission of those words does not alter the essential message being delivered by the union. The Board attributes employees with the ability to sort through campaign promises and propaganda in an organizing campaign in the same way voters are entitled to reach conclusions about candidates in any democratic election.
I note here that the employer seeks to rely on the results of the various votes. It argues that because the union lost the first two votes by a wide margin and then won the third vote by a similar margin, those vote results reflect evidence of employee intimidation by the union in the third vote. While the Act provides that prior vote results are relevant in reaching a decision under section 11, it would also be relevant to consider any change in the level of support evidenced between the membership evidence filed by the applicant and the results of the first vote. More fundamentally however, such an exercise becomes relevant in assessing whether or not a remedy under section 11 is warranted. Vote results are at best of limited assistance in determining whether section 76 of the Act has been violated. Vote results do not turn an otherwise lawful statement into an unlawful one.
I find therefore that the employers’ pleadings in respect of the “plant closure” reference in the leaflet do not make out an arguable case for a violation of section 76 of the Act. That aspect of the complaint is therefore also dismissed. Those two components comprise the allegations made. Neither makes out a prima facie case of a violation of section 76 of the Act. The application in Board File No. 2853-99-U is therefore dismissed.
Even if I am wrong in this finding, there is of necessity a further inquiry. The ordering of a further vote is available only once the Board concludes pursuant to section 11(2) of the Act that the true wishes of the employees were not likely ascertained in the prior vote. That inquiry includes a consideration of the broader factors surrounding the conduct of the earlier vote. While a finding of a violation of the Act is a necessary precondition to the application of section 11(2), it is not sufficient. Even in the face of a violation of the Act the Board has refrained from exercising this extraordinary relief. In the circumstances here, disclosure of the monetary offer to settle is not something that would cause the Board to conclude that the true wishes of employees were not likely ascertained. Further, even assuming that the comments about plant closure constituted some form of threat by the union, the Board would not in the circumstances exercise the discretion to order a fourth vote.
The vote results do not particularly assist in assessing the effect of the union’s conduct. Although the union lost the first two votes, at the time of ordering the first vote the union had the appearance of support of not less than forty percent of the employees in the proposed bargaining unit. Comparing the union’s membership support to those actual employees whose eligibility to vote in the first ballot was not challenged, the union appeared to have more than fifty-four percent support prior to that vote, yet achieved less than twenty-five percent support in the vote. Having regard to the totality of the vote results on the record, those results are at best, ambiguous. On the other hand, the employer did have an opportunity to respond to the leaflet. In its application the employer enclosed a copy of a letter which it asserts it forwarded to employees in the proposed bargaining unit prior to the third vote. I must assume that to be true as well. In that letter the employer took the opportunity to respond to the two impugned comments. It denies any improper conduct on its part. It comments in more detail and in considerably more length than any remedial notice from the Board as to the rights of employees to be free from intimidation in making their choice whether or not to support the union.
Given the chronology of events between the parties as evidenced on the record, the particular wording of the union’s leaflet and the employer’s letter, there is no basis for the employer to sustain an argument that the true wishes of the employees were not likely to have been ascertained in the third vote such that the Board would be disposed to order another vote.
Having regard to all of the above, I find that the application in Board File No. 2853-99-U does not make out a prima facie or an arguable case for the remedy requested. It is therefore dismissed.
No other issues are outstanding in respect of the application for certification in Board File No. 1036-98-R. I note the parties’ agreement as to the bargaining unit description. However the reference to employer name is not in a form acceptable to the Board. The bargaining unit is properly described as:
all employees of Groupe Permacon Inc., in its Permacon Ottawa division in the Town of Stittsville, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, customer representatives and students.
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 applicant.
A certificate will issue to the applicant for the bargaining unit described in paragraph 38 above.
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.
“M. A. Nairn”
for the Board