0359-00-R Beachville Lime Limited, Applicant v. Communications, Energy and Paperworkers Union, Local 3264 and Communications, Energy and Paperworkers Union, Local 774, Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
APPEARANCES: Robert A. Atkinson, Steven Brookshaw, Suzanne Ritzler and Gord Adam appeared on behalf of the applicant; S.B.D. Wahl and E. Dures appeared on behalf of CEP Local 774; David Wright, Rick Cecchin and Tim Harrington appeared on behalf of CEP Local 3264.
DECISION OF THE BOARD; December 8, 2000
1This is an application under section 69 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”).
2By decision dated July 5, 2000 a differently constituted panel of the Board, pursuant to the parties’ minutes of settlement dated June 23, 2000, declared that a sale of a business had taken place, a conflict existed between the bargaining rights of the two responding parties, and there had been an intermingling of employees of the two bargaining units for which the responding parties held bargaining rights. On the consent of the parties, the Board ordered a representation vote for August 10 and 23, 2000.
3The results of the representation vote are: 108 ballots cast in favour or the responding party, Communicatons, Energy and Paperworkers Union, Local 3264 (“Local 3264”); 80 ballots cast in favour of the responding party Communicatons, Energy and Paperworkers Union, Local 774 (“Local 774”); and 3 ballots segregated and not counted.
4At the hearing of this matter on October 12, 2000, Local 774 asked the Board to set aside the results of the representation vote. It alleged that Local 3264 and the applicant employer engaged in various unfair labour practices which cast serious doubt on whether the wishes of the employees were reflected in the vote results.
5In the alternative, Local 774 requested the Board to decide which of the Local 774 and the Local 3264 collective agreements should apply in the successor employer’s workplace, and the relative seniority of the employees.
6At the outset, an issue was raised regarding the appropriate bargaining unit in this matter. The parties agreed that the Board should make a ruling on this issue, and then move on to consider motions of Local 3264 and the applicant that Local 774 had failed to establish a prima facie case for a second representation vote.
7With respect to the appropriate bargaining unit, counsel for Local 774 took the position that that issue had not yet been finally determined, and that the fashioning of the description of a single bargaining unit must include a consideration of the protection of the rights of the employees. Counsel for Local 3264 and the applicant took the position that the parties had already agreed to an appropriate bargaining unit in the June 23, 2000 minutes of settlement, and that the Board had previously determined that matter in its July 5, 2000 decision referred to above.
8The Board considered the submissions of the parties and ruled orally that, having regard to the minutes of settlement of June 23, 2000 and the Board’s decision of July 5, 2000 the issue of the appropriate bargaining unit had been finally determined. The appropriate bargaining unit, as determined by the Board on July 5, 2000, and confirmed by this panel of the Board on October 12, 2000 is:
all employees of Beachville Lime Limited at its operations in the Townships of Zorra and Southwest Oxford, save and except foremen, persons above the rank of foremen, office staff and non-bargaining unit stores and laboratory staff.
9The Board then went on to hear and consider the submissions of all the parties regarding the prima facie motions referred to above. Subsequently the Board issued the following oral ruling:
The Board is of the view that the prima facie motions of Local 3264 and the applicant succeed. Accepting without deciding that all the allegations contained in the August 30 letter of Mr. Steinberg [then counsel for Local 774] in connection with the events leading up to the representation vote are true, the Board is not convinced that the results of the representation vote do not represent the true wishes of the employees who cast ballots.
Accordingly, the results of the representation vote are confirmed and, pursuant to the June 23 agreement of the parties [the minutes of settlement], the Board declares Local 3264 the bargaining agent.
10The Board indicated that written reasons for the ruling on the prima facie motions would follow. It adjourned the remainder of the proceedings on October 12, 2000, in order for the parties to consider options for settlement, and directed counsel for Local 774 to advise the Registrar whether further hearing dates would be required in the event that there remained outstanding issues for determination.
11What follows are our reasons with respect to the prima facie motions.
12In correspondence dated August 30, 2000, the then counsel for Local 774, Mr. Steinberg, made post-vote representations in response to the Notice of the Board Officer. Under the heading, “New Vote Should be Ordered”, the following representations appear:
It is the position of C.E.P.U. Local 774 that a new representation vote should be ordered because the results of the vote are not reliable as a result of violations of the Labour Relations Act, 1995 (“the Act”) by both C.E.P.U. Local 3264 and the Applicant.
In particular, it is the position of C.E.P.U. Local 774 that C.E.P.U. Local 3264 violated sections 76 and 87(2) of the Act and that the Applicant violated sections 70 and 72(c) of the Act such that the true wishes of the employees was not reflected in the results of the vote.
C.E.P.U. Local 774 relies on the following facts, namely:
(a) Harry Connor (“Connor”), a Local 3264 member threatened another Local 3264 member Ralph Minogue (“Minogue”), to the knowledge of both C.E.P.U. Local 3264 and the Applicant during the period leading up to the representation vote. Connor told Minogue that his house would be burned down “if you support Local 774 or their members”, contrary to sections 76 and 87(2) of the Act.
(b) Contrary to sections 76 and 87(2) of the Act, a deliberately misleading and defamatory notice signed by “Unknown Soldier local 3264” on the letterhead of C.E.P.U. Local 3264 (copy attached) was circulated on or about August 7th just three days before the first vote. That notice deliberately and maliciously implies that the indexed pension which had been negotiated by C.E.P.U. Local 774 had been bargained away. Although the rest of the document is inaccurate, misleading, malicious, petty and untrue, the pension issue was extremely important to many members of Local 3264 who were close to retirement age and who were prepared to support C.E.P.U. Local 774 because of the possibility of obtaining the better pension benefits under the C.E.P.U. Local 774 Collective Agreement. It is apparent from the fact that C.E.P.U. Local 774 only “lost” by 28 votes, that the loss of such potential supporters of C.E.P.U. Local 774 among the members of C.E.P.U. Local 3264 undoubtedly impacted on the result of the vote.
(c) To the knowledge of both C.E.P.U., Local 3264 and the Applicant, C.E.P.U. Local 3264 supporters, on a daily basis, ripped up any campaign material posted by C.E.P.U. Local 774. Moreover, bulletin boards secured under glass, which were available for C.E.P.U. Local 774 to post its campaign material were broken, to the knowledge of the Applicant, but nothing was done, all of which was contrary to sections 70, 72(c), 76 and 87(2) of the Act.
(d) Contrary to sections 76 and 87(2) of the Act, members of C.E.P.U. Local 3264 were advised by the executive and stewards of the Local that because C.E.P.U. Local 774 did not have a collective agreement, a lock out would occur if that Local won the vote and that the Applicant would not pay the wages in Local 774’s collective agreement without a strike.
Based on the foregoing it is the position of C.E.P.U., Local 774 that a new representation vote should be ordered in order to determine the true wishes of employees.
13In support of the allegations made in paragraph 3(b) of the representations, Mr. Steinberg attached a copy of the communication (“the Unknown Soldier letter”) referred to therein. It is useful to set out the full text of that document, leaving aside any grammatical comment:
VOTE 3264
In a perfect world the business before us would all be settled without any suffering or being hurt in any way. The reality of the matter is this is not a perfect world. Therefore, we are made to choose between ourselves and our co-workers of local 3264, and the members of 774 who have just recently become members of BEACHVILIME.
We didn’t ask for this or cause in anyway for this to happen. The ones who put us in his position is the company. So we have to decide Do we vote for an Executive Decision who we elected and has done a good job keeping us informed of all that was going on, and at all times had and still has our best interest at heart. Or do we vote for an executive from a different local who has the best interest of their members at heart. Local 774 has previously voted down dovetail agreements and now are crying wolf to get it back. Local 774 has lied continuously, they have made 3264 look like the bad guys, as it is the company who put us in this position not 3264. Local 774 has continously Tried to blame 3264 by producing letters in the media, the last of which produced wages, which is none of the public’s business. I think at this point it is obvious that 774 is only looking out for 774 and not 3264 bests interests and that 3264 wins the vote. But there are many things to consider. Local 774 could possibly endtail local 3264 even if they say they are not. They have changed there minds continuously, and on this point it is clear that one must vote for 3264. One must remember local 774’s contract is frozen and ours is still active. For those who think they will receive their contract are in for a surprise. Local 774 has members who retired in the last year are not receiving that glorious indexed pension, it was assumed that they bargained it away when they opened their contract. The wages will have to be negotiated immediately because 774’s contract is open. Who is to say that your going to get those wages. Local 774 has already negotiated lower wages on a stripping deal to keep jobs. Do you want that I think not!!!. 3264 executive turned down anything that had to do with lower wages. If you vote 774 there executive will be in a place of local 3264 executive. The local will no longer have as much say in what the executive does, local 774 tends to let their executive make the decisions without discussion with its members. An example is the first merger proposal, the executive made the decision to turn it down not the whole local. Any decision that 3264 made was brought before the local and voted on. .Also, when the two presidents talked at the merger meetings local 3264 president asked what it to happen when Dundas wants to merge. Local 774 president said he will just endtail them. Do you trust local 774, I think not!!!
We have been accused of not having any compassion for our brothers and sisters. Well I beg to differ we have had compassion to the point of having voted to give up some of our seniority by accepting a dovetail with the knowledge that some of our fellow members would be laid off: which 774 turned down. After this we decided to show compassion to our members and protect our jobs first. Deal with our house before we go to someone else’s to solve their problems. If that is wrong than so be it, I think we must look after our own members first. The National says it is in favour of a dovetail, but know that 3264 is not the only C.E.P. Local to endtail. Well the National is not losing any jobs we are.
Well fellow members, we are not the bad guys local 3264 has tried to come to an agreement with 774. Ed Dukes wanted nothing to do with it. Is that who you want representing you. I Don’t, so vote local 3264. Some jobs will be lost, that is unfortunate, will it be yours I hope not. Remember vote 3264
Unknown Soldier
Local 3264
14Both counsel for the applicant and for Local 3264 responded to the allegations set out in Mr. Steinberg’s August 30 letter, which responses prompted a further reply from Mr. Steinberg on September 15, 2000. It is unnecessary to deal in any detail with those responses and the reply to them, save to make the following observation. Local 774 did not raise any new allegations in the reply. In fact, Local 774 did not make any new allegations or provide further particulars of the existing allegations prior to the raising of the prima facie motions on October 12, 2000. Our decision concerning the prima facie motions was based solely upon the information provided by Local 774 up to the point that counsel for Local 3264 began his submissions on October 12, 2000. In response to that motion, and the similar motion of the applicant, counsel for Local 774, in our view, attempted to embellish and augment the allegations contained in Mr. Steinberg’s letter of August 30, 2000. We did not consider those extraneous oral submissions, because there was no reason offered by Local 774 as to why they could not have been raised prior to the commencement of Local 3264’s motion.
15As counsel for Local 3264 pointed out, Local 774’s allegations fall into four categories:
The threat made by one Local 3264 member to another concerning the latter’s voting intentions.
The distribution of the Unknown Soldier letter, particularly those aspects of the letter that Local 774 say mislead the reader into believing that Local 774 bargained away previously obtained indexed pension provisions in its collective agreement, provisions which were highly valued by potential retirees in the Local 3264 bargaining unit.
The destruction by Local 3264 members of Local 774 campaign materials, and the vandalizing of the bulletin boards made available to Local 774 to post its campaign materials.
The advice of the executive of Local 3264 to its members that a lock-out would occur if Local 774 won the vote.
16The threshold for setting aside the results of a representation vote and ordering a second vote has traditionally been set at a high level by the Board. There have to be compelling reasons to intervene in the formal expression by employees of their wishes in matters pertaining to their labour relations. That has been and remains the Board’s approach: see Conseil scolaire de district des écoles catholiques du sud-ouest, [2000] OLRB Rep. Jan. 22; CFM Majestic Inc.; [1999] OLRB Rep. Apr. 180; Concorde Metal Stampings, [1987] OLRB Rep. Jan. 34; Crock & Block Restaurant, [1984] OLRB Rep. Jan. 19. In examining the conduct complained of, the Board must ask itself whether or not the “critical faculties” of the reasonable voter would be compromised or overwhelmed by that conduct, such that the vote results are not likely to reflect the true wishes of the majority of those casting ballots. If so, a second representation vote is in order. If not, the original representation vote results must stand.
17We are not persuaded that any one of the allegations, or any combination thereof, would, if proved, justify the extraordinary remedy of setting aside the results of the representation vote, and establishing a second vote. The alleged threat made by the Local 3264 member to his co-worker is wholly unparticularized in terms of its specific timing prior to the representation vote, and its context. The allegation contains no indication that any other employees knew of, or were intimidated by the alleged threat or even that the person to whom it was directed acted upon it. During his oral submissions on the motion, counsel for Local 774 revealed that the evidence would show that the threat did make its way back to other employees. If that is the case, no reason was offered as to why such a material fact was not pleaded previously. As we indicated earlier, we did not take into account material facts alleged after the commencement of the prima facie motion. Accordingly, the threat must be viewed as a single isolated event, unlikely to have had any bearing on the critical faculties of the voters at large.
18We agree with counsel for Local 3264’s assertion that the Unknown Soldier letter, objectively viewed in its entirety, is little more than typical campaign literature expressing a viewpoint favourable to one of the competing trade unions, and dismissive of the other. Local 774 complains that the document is defamatory and misleading. Even if that is the case, the Board does not have jurisdiction to deal with allegations of defamation, and the Board willl not set aside a vote merely on the basis of misleading campaign information. Local 774 pleaded that the Unknown Soldier letter appeared three days prior to the vote, but it did not plead that it had no opportunity to respond to the allegations therein contained. In any event, we view the Unknown Soldier letter as propaganda, and believe that the reasonable voter would have seen it in the same light.
19The allegations concerning the destruction of Local 774’s campaign materials and the damaging of its allocated bulleting boards are not sufficiently serious to warrant conducting another representation vote. The Board does not approve of or condone such behaviour. However reprehensible, the fact is that these things can happen in the course of contested campaigns, and in the absence of any allegation by the victimized trade union that it could not, as a result, get its message out to the voters, the Board should not consider interfering in the vote results.
20Similarly, in respect of the allegation that Local 3264 warned of a lock-out in the event of a victory by Local 774, we are of the view that the reasonable voter would know that it is the employer who has control over that eventuality, and that Local 3264 was merely speculating about an event that could conceivably occur. Counsel for Local 774 intimated that the employees would have concluded that Local 3264 had special knowledge of the employer’s intentions in this regard or had the implicit support of the employer, but no material facts were pleaded to support that conclusion. In fact, the allegation is, like the one concerning the threat to set a co-worker’s house on fire, wholly unparticularized in terms of the timing of the utterances, and the context in which they were given. Accordingly, Local 774 has failed to establish the factual underpinnings to support the conclusion that the alleged warning of a lock-out could have had an impact on the critical faculties of the voters.
21For all of the above reasons, the Board confirms its oral ruling of October 12, 2000. The Board declines to order a second representation vote. The Board confirms that Local 3264 is the bargaining agent for employees in the bargaining unit described in paragraph 8 of this decision.
22The applicant is directed to post copies of this decision adjacent to the posted copies of the November 23, 2000 decision of the Board, differently constituted. These copies are to remain posted for a period of 30 days from the date of this decision.
“Patrick Kelly”
for the Board