Union's Application for Certification and Allegations of Coercion and Intimidation

Background of the Case

The Union has applied to certify all non-managerial workers at a discount retail department store owned by the Employer and located in Kelowna. A representation vote has been taken, and the ballots have been sealed and not counted. The Union requested, and the Labour Relations Board granted, a hearing to consider the Union’s allegation that representatives of the Employer coerced and intimidated employees prior to the vote. The Union asked that the Board order an automatic certification, pursuant to section 14(4)(f) of the BC Labour Relations Code. The Union conducted an organizing campaign amongst the employees at the store for several weeks. Jennifer Cole, a shelf stocker, had a meeting at her home with a Union organizer and some of her coworkers. Shortly thereafter, another employee told the Employer’s Regional Manager, Charles Chitty, that the organizing campaign had begun. Chitty then called a workplace meeting attended by all the managers at the store, and representatives of the workers on each shift. Different individuals had different versions of what was said at the meeting, but everyone agreed that Chitty explained he was not happy with the organizing campaign, and wanted to be kept up to date on what was going on. He also told those present to “get more information” and to “mind their p’s and q’s.” A week after the meeting, the store’s home furnishings manager, Jerry Drost, returned from holiday and approached Cole while she was at work. Drost told her that he knew she had had the Union meeting at her house, and that if the Union was successful with its campaign, employees would have to work part-time or be laid off. She replied: “Whatever happens, happens.” She also told Drost that she could do what she wanted on her own time. She then walked away. On the same day, the store’s general manager, Bill Monk, called Cole into his office. He expressed his concern that some of the other employees in the store had told him they were upset that their home telephone numbers – some of which were unlisted – had been given to the Union. He also told Cole that still other employees had told him they had been misled into signing Union cards, and that Chitty was very unhappy. 2 The next day, Drost told Cole that if she was found talking to any staff member, it would be assumed that she was talking about the Union, and she would be “written up.” After this conversation, Cole went to Monk, who said he would talk to Drost. Monk also told her that if she was talking for more than a few minutes it would be perceived as talking about “things other than work.” During the time period he was having his discussions with Cole, Drost also had a conversation with Ted Jaffee, a truck driver for the store. Drost told him that if the Union was certified, Chitty would shut down the warehouse portion of the operation and use a different distributor to stock the store. Drost also told Jaffee that the company would end its practice of putting unsold fresh deli sandwiches from the store’s food department in the employee lunchroom for the employees to have if they wanted them. Drost’s position on this conversation was that it was Jaffee who initiated it, not him, and that anything he said was in response to Jaffee’s questioning him about what might happen if the Union “gets in.” Drost approached another warehouse employee, Arnold Powell, and asked him if he knew anything about the Union campaign. Drost also told Powell that there was a chance of lay-offs or part-time work if the Union got in. This scared Powell because he was in the process of buying a house. Drost’s version of this discussion was that Powell had approached him, and informed him that he would not be voting for the Union because he was afraid he might be laid off. A few weeks after he called his meeting, Chitty distributed a pamphlet to the employees working in the store. In the text of the pamphlet, he denied that certification would have any effect on him personally or on the business. He also mentioned that a few years earlier the business had experienced an economic downturn but no one had been laid off then. He stated that it was the workers’ choice if they wanted to join a union, but that he would prefer to deal with the employees directly because “a union can create an ‘us vs. them’ relationship [and] I believe that is bad for business.” A week later, Chitty distributed another pamphlet to the employees. In it he stated: “I strongly believe that as a non-union Company we can have a more positive, productive relationship with employees,” but that “at the end of the day each of you will vote in a way that is best for yourself. I accept that and will accept whatever decision you make.” He then re-emphasized that he preferred to deal with employees directly. Allan Hardy, the Union organizer, told the Board that after some initial success in signing up store employees, there was a “clear turn” for the worse in the campaign a few days after the meeting at Cole’s house. He said he managed “to pull things 3 back around” and gain some support after that, but there was a severe drop in support after Drost returned from holiday. Employees cancelled appointments they had made to meet with Hardy, and some employees who had told him to call back now refused to speak to him. The Union’s Position The Union argues that automatic certification should be granted because Drost’s conduct turned the certification campaign into a campaign about whether the employees could keep their jobs. The Union says that Chitty must have known what Drost was saying to employees. The Union asserts that taken as a whole, Chitty’s comments at the meeting, and in the pamphlets, were coercive and intimidating. The threat to Cole that she would be “written up”, with no effort on the part of the Employer to investigate what she was saying to employees, and no evidence of any threats to discipline other employees who talked to Cole during work hours revealed anti-Union animus on the part of the Employer. The Employer’s Position The Employer argues that much of the Union’s evidence is disputed, and that no threats were made. The Employer says that Cole was only advised about the laws governing certification campaigns when she was told not to do any Union organizing while at work. The Employer also asserts that it is not illegal for people like Chitty and Drost to express their opinions about unionization, and that none of their statements were coercive or intimidating. It says that Drost’s statements were largely made in response to questions from employees, and that if some of his statements “crossed the line” he was only expressing his personal opinions, not those of the Employer. Also, any fears the employees had about statements made by Drost should have been ameliorated by the statements made in Chitty’s pamphlets. Assume you are the Labour Relations Board deciding this matter. Write a decision disposing of the application, following the instructions provided to you in Moodle.