Employer interfered in decertification drive: Canada Industrial Relations Board

Case hinged on whether worker alleged to have helped circulate petition to oust Steelworkers was acting in a management capacity

What constitutes employer interference when it comes to decertifying a union?

That question was recently tackled by the Canadian Industrial Relations Board in a case involving school bus drivers in Amherst, N.S.

On July 15, 2002, the United Steelworkers of America became the certified bargaining agent for a group of bus drivers and other employees at the Amherst branch of Laidlaw Transit Ltd. Its branch office in Amherst employed 60 drivers, including part-time spare drivers and a mechanic.

The union and the employer hammered out their first collective agreement in the fall of 2003. It was in force from Nov. 4, 2003, to June 30, 2005.

Decertification petition

A petition seeking the revocation of the union’s bargaining certificate was started on Jan. 21, 2005, by Edward Embree, a Laidlaw driver, with the assistance of fellow driver Shirley Stanley.

By March 8, 2005, Embree had collected enough signatures to file an application for a revocation of the bargaining unit.

Union alleges company interference

The union said an application for revocation must be free of all employer interference. The employer must be totally impartial and be seen as such by the employees, it said.

The union said Heather Jewitt, the company dispatcher, supported and facilitated the signing of the petition to terminate its bargaining rights and that she was a management employee.

Jewitt was not included in the union when it was certified because, at the time, she was represented by the company as a person with management responsibilities. In 2002, the then branch manager said she should not be included in the bargaining unit because she did not share a “community of interest” with the bus drivers and mechanics. The branch manager also said that:

•Jewitt exercised management functions and was involved in confidential duties in respect of labour relations;

•all drivers were required to report to her daily;

•she was responsible for co-ordinating charter work, assigning bus drivers to charters, and scheduling maintenance of the buses; and

•she was involved in the preparation of all employment-related documents including those related to employment insurance and other labour relations matters.

The union said her position and duties had not changed since the former branch manager described her responsibilities as listed above.

The union said there were a number of instances where Jewitt supported and facilitated the signing of the petition to terminate the union’s bargaining rights:

The first alleged incident: The union said Jewitt contacted a driver at home and told him to bring his bus to the terminal for routine maintenance. During the course of this conversation, which involved some discussion about the union’s performance since the signing of the collective agreement, Jewitt said there was a petition to revoke the union’s certification in her office and if he was serious about getting rid of the union, he should come and sign it.

The driver brought his vehicle in the following day and he was paid waiting time while the bus was being serviced. While in the dispatch office, Jewitt presented him with the petition and allegedly asked him to sign it.

Sometime after the application for revocation was filed with the board, it is alleged she told him to say he had not signed the petition in her office but that he had signed it outside.

The second alleged incident: The union said Embree, the driver who started the petition, asked another driver to sign it in the presence of Jewitt while in the dispatch office. Embree did not have the petition with him, but asked the driver where he lived so he could contact him at home.

Two weeks later, Embree arrived at the driver’s home — driving a Laidlaw school bus — to obtain his signature. Embree is alleged to have told the driver that employees would be better off without the union and would be entitled to company jackets, hats, barbecues and other benefits.

The union said the company had to deny that Jewitt was part of the management team because, if she was part of the management team, her actions would be a violation of the Canada Labour Code.

The employer’s position

The employer denied it had interfered with the union’s representation rights or that it had engaged in any discriminatory actions or intimidation.

It said Jewitt was not a manager or representative of the employer during the period where employees circulated the petition to revoke the union. There was no evidence that employees were stampeded into making a choice to decertify the union or that they were unable to exercise their decision to sign the petition in a free and open manner.

It said in previous cases where employer interference has been found, the employer had a history of unfair labour practices or the interference was extreme — for example, the employer extended favours to the employee who was the driving force behind the petition.

It said the branch manager did not turn a blind eye to the petition. He told Jewitt not to get involved. No employee was rewarded for signing the petition, there was no history of strained labour relations nor was anyone given preferential treatment, the employer said.

It said Jewitt’s work was clerical and she made no management decisions. Any decisions she had to exercise, such as assigning work, were dictated by the collective agreement — work was assigned on the basis of seniority, not her personal judgment.

It pointed out that it suspended Embree for two days for using a company bus to bring a petition to another driver’s house. There was no employer involvement in the decision to use the bus in that manner, it said.

The employer said it was not seeking removal of the union, but said it would be unfair to find it in violation of the code. It wanted the board to order a vote to determine the true wishes of employees.

The board’s decision: Jewitt had ‘enormous amount of influence, regardless of job title’

The board looked closely at Jewitt’s duties at Laidlaw. It said the duties she performed were undisputed, but the scope of her authority was up for debate.

The union said how employees perceive her was key, the employer said what she really does was all that mattered. The board preferred the union’s viewpoint.

“Were there a number of dispatchers in the office or were Ms. Jewitt exercising only secretarial functions, the board might be inclined to consider Ms. Jewitt as just another employee as the employer suggests,” the board said. “However, the grouping of responsibilities as dispatcher and secretary within one person gives that person an enormous amount of influence, regardless of her job title.”

It said the collective agreement did not automatically dilute her authority over the working lives of employees who report to her far more directly and frequently than to the branch manager, who was often out of the office dealing with other matters. The board said drivers were still required to report to Jewitt on a daily basis, to follow her instruction on assignments, to report any incidents and submit payroll information to her.

It said the decisions she made may not be the most critical to the Amherst operation but, nonetheless, Laidlaw’s management had deemed it appropriate to delegate these decisions to her. Therefore, the board was satisfied that Jewitt was “acting on behalf of an employer.”

What constitutes illegal interference?

The board had previously considered the issue of what constitutes legal interference by the employer in the decertification process in a number of cases.

Each case stands on its own merits. But the board took a collective look at decisions and put together a list of factors to take into account. It said the circulation of a petition in the workplace is not the single decisive factor. It requires other circumstances such as:

•employer communication with employees;

•unusual rewards;

•practices found to be unfair labour practices;

•the employer’s overall conduct; and

•circumstantial evidence.

In this case, the board said there was evidence the petition circulated in the workplace. When this was brought to the branch manager’s attention, he told Jewitt not to get involved and refused to discuss the issue with any employee that broached the subject.

Had the circulation of the petition been the only evidence, the board would likely have not ruled in favour of the union, it said. But there were other incidents that tipped the scale towards employer interference.

The first was that Jewitt made her views about the union and how employees would be better off without the union the subject of regular conversations with drivers, particularly those who testified.

The board was particularly troubled by the evidence that after the application for revocation was filed, Jewitt asked one of the drivers to change his story about where he had signed the petition.

There was also evidence that Embree asked one of the other drivers to sign the petition in the dispatch office in the presence of Jewitt. She did not intervene, despite the instructions she had received from the branch manager.

“Ms. Jewitt did more than simply turn a blind eye to the petition being circulated,” the board said. “Whether the signing took place in the dispatch office or the yard, she facilitated the circulation of the petition by making it available in the dispatch office and by soliciting at least one employee directly.”

The board also said it was clear that Jewitt was perceived by drivers as having authority to act on behalf of the employer.

Therefore, it ruled there was sufficient evidence of employer influence contrary to the code.

“As a result of the employer’s interference, the board finds that the employer jeopardized the likelihood that a vote would accurately reflect the wishes of the members of the bargaining unit,” the board said. “Consequently, the union’s complaint of unlawful interference is upheld and the board orders that the application be dismissed without holding a representation vote.”

For more information see:

U.S.W.A., Local 6551 v. Laidlaw Transit Ltd., 2005 CarswellNat 2881 (C.I.R.B.)

What the Canada Labour Code says

The employer in this case was alleged to have violated the following sections of the code: 94(1)(a) and s. 94(3)(a)(i) or (vi) and s. 94(3)(e) and 96. These sections read as follows:

94.(1) No employer or person acting on behalf of an employer shall

(a) participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union;...

. . .

94.(3) No employer or person acting on behalf of an employer shall

(a) refuse to employ or to continue to employ or suspend, transfer, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person

(I) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of a trade union or participates in the promotion, formation or administration of a trade union,

. . .

(vi) has participated in a strike that is not prohibited by this Part or exercised any right under this Part;

. . .

(e) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or cease to be a member, officer or representative of a trade union or to refrain from ...

. . .

96. No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a trade union.

In this case, the board said there was sufficient evidence of employer influence contary to s. 94(1)(a). Therefore, it was unnecessary to determine whether the employer violated s. 94(3)(a)(i) or (vi) and s. 94(3)(e) of the code.

Section 96 is a broad catch-all provision meant to provide alternative relief in cases where the provisions of s. 94 of the code may be inapplicable, the board said. Since it determined Jewitt should be considered a “person acting on the behalf of the employer” for the purposes of a violation under s. 94, s. 96 is of no assistance to the union, it said, and made no finding under s. 96 in this case.

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