United Food and Commercial Workers International Union v. Textile Trim Canada Limited, 1980 CanLII 2798

United Food and Commercial Workers International Union v. Textile Trim Canada Limited

[1980] OLRB Rep. November 1702

1154-80-R United Food and Commercial Workers International Union, A.F.L., C.I.O., C.L.C., Applicant, v. Textile Trim Canada Limited, Respondent, v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members C. G. Bourne and M. J. Fenwick.

APPEARANCES: M. Levinson and others for the applicant; Leon Paroian, Q. C. and others for the respondent; Jean Vandendriessche and others for the group of employees.

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER M. J. FEN WICK.

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.

3. Having regard to the agreement of the parties, the Board further finds that all employees or the respondent in the Town of Delhi, Ontario, save and except forepersons, person above the rank of foreperson, and office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. In support of this application which was filed on September 10, 1980, the trade union filed documentary evidence of membership on behalf of a number of employees. The combination applications and receipts were signed between September 6 and 17, 1980, with the vast majority of these documents being signed during the three day period from September 6th to 8th inclusive. This documentary evidence is correct in all respects, is supported by a properly completed (Form 8) Declaration Concerning Membership Documents and demonstrates a level of membership support in excess of that required for certification without recourse to a representation vote.

5. There was also filed in this matter, in timely fashion, four documents (hereinafter referred to as the "petitions") expressing opposition to the applicant trade union. As indicated above, in the absence of the petitions, the applicant would be entitled to be certified without a representation vote. However, the overlap between persons who signed membership cards in the applicant and the persons who signed the petitions is sufficient that the Board would generally exercise its discretion to direct a representation vote if the Board were satisfied of the voluntariness of the petitions. Accordingly, the Board conducted its usual inquiry into the origination and circulation of the petitions.

6. The legal basis and effect of petitions and the Board's practice concerning same were explained in Peacock Lumber Ltd., [1979] OLRB Rep. May 423 as follows:

"7. Neither 'statements of desire' nor 'petitions' are mentioned in The Labour Relations Act itself, but they do appear to be contemplated by Rule48 of the Rules of Practice(R.R.O. l97OReg. 551 as amended.)The Board has a long established practice of accepting such petitions and exercising its discretion to order a representation vote where the petition is voluntary, complies with Rule 48, and contains the signatures of a suf­ficient number of persons who have previously signed membership cards, that there is some doubt whether the union's 'members' continue to sup­port its certification. In Radio Shack, [1978] OLRB Rep. Nov. 1043 (at p. 1046) the Board explained the effect of a petition in the following way:

16. Having regard to the statutory definition of 'member' and the provisions concerning membership evidence, the Board is satisfied that more than fifty-five per cent of the employees in bargaining unit #1 are 'members' of the union, and that therefore the union may be certified without a representation vote. However, section 7(2) of the Act gives the Board the discretion to order a representation vote where it considers it advisable to do so. The practice of the Board is to exercise this discretion in favour of ordering a representation vote where a sufficient number of the employees, who have been found to be union 'members', subsequently indicate that they no longer wish to support the union. When faced with this 'change of heart', the Board will order a representation vote in order to satisfy itself that, in addition to meeting the statutory membership support requirements, the union continues to enjoy the support of its members~

17. The 'change of heart' will often take the form of a petition or statement of desire indicating that the signatories no longer wish to support the union. There is no specific form required for such peti­tion, but it must comply with the requirements of Rule 48, and clearly indicate the member's change of heart. Typically, the petition in opposition to the union is signed by members who have indicated their support only a few days before. Moreover, while an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such as­surance concerning his refusal to sign a petition opposing the union. In these circumstances an employee may sign a petition out of fear that his refusal to do so will be made known to his employer rather than a genuine opposition to the union. It is for this reason that the Board undertakes the enquiry into the origination and circulation of the petition contemplated by Rule 48(5), in order to satisfy itself that the statement in opposition to the union is truly voluntary.

18. The statement of desire filed in opposition to the application bears a sufficient number of signatures which correspond to the signatures of persons in the full-time bargaining unit who signed membership cards that, if proven to be a voluntary expression, will cause the Board to exercise its discretion under section 7(2) of the Act and direct the taking of a representation vote...

19. Rule 48 casts upon the petitioners an onus to call evidence as prescribed by 48(5), and to generally demonstrate that the petition is voluntary. The Board must be satisfied that when the members signed the petition, they were evidencing a genuine change of heart and were not motivated by a concern that their failure to sign would be communicated to the employer, or could result in reprisals. It must be clear that the circulation of a petition is free from the actual, or perceived, influence of management. In this respect the Board takes the same approach as it does with union membership evidence. (See, for example, Veres Wire, [1976] OLRB Rep. July 337 where the involvement in a union organizing campaign of a person reasonably perceived to be managerial, prompted the Board to reject the union's membership evidence because it was not satisfied that the 'members' had signed voluntarily.) In Radio Shack, supra, the Board commented:

20. The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the 'sudden change of heart' by those who signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC ¶ 16,264 in the following terms:

'In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influence, obvious or devious, which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.'

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. [1975] OLRB Rep. Nov. 813 and the cases cited therein.)"

7. One of the aforementioned four petitions reads as follows:

"Dear Sir or Madam

I do not want to JOIN THE UNION

TEXTILE TRIM CANADA Ltd."

Neither the person whose signature appears on that petition nor any other person who testified from personal knowledge and observation as to the circumstances concerning the origination of that petition and the manner in which the signature was obtained, appeared at the hearing held by the Board in Toronto on October 3, 1980 or at the continuation of the hearing held in London on October 29 and 30, 1980. Since the requirements of Rule 48(5) have not been fulfilled, the Board attaches no weight to that petition.

8. Evidence was adduced concerning the origination and circulation of the remaining three petitions. One of them was in the form of a letter signed by Fenneymore Lee, a sewing machine mechanic employed by the respondent. Mr. Lee testified that he decided to write the letter after reading the "green sheet" (Form 5 Notice to Employees of Application for Certification and of Hearing) which was posted by the respondent on September 19, 1980. A letter in opposition to the applicant was also written, signed and sent to the Board by Elizabeth Brown. Ms. Brown is classified as a "Lead Person" on Schedule A of the respondent's Form 9 Reply to Application for Certification and is included in the bargaining unit set forth above.

9. The remaining petition in opposition to the application contains seven signatures. It was prepared and circulated by Jean Vandendreissche, a sewing machine operator employed by the respondent. Ms. Vandendriessche testified that she obtained three signatures in the plant cafeteria between 8:00 and 9:00 a.m. on September 22, 1980. Although those three persons commenced work at 8:00 that morning, the evidence indicates that it was not unusual for them to be in the cafeteria for a few minutes during the first hour of work since employees are permitted to go to the cafeteria anytime they wish to smoke a cigarette. (Smoking is not permitted in the work area of the plant.) Ms. Vandendniessche further testified that she obtained the remaining four signatures that same morning "right in the plant where we do our sewing at the machines". She stated that she "went from machine to machine to get those signatures" arid was accompanied by one of the other persons who signed the petition. It was also her evidence that her "supervisor" Elizabeth Brown was in the plant at the time. Ms. Vandendriessche stated that she did not ask Ms. Brown to sign the petition because the latter had told her that she (Ms. Brown) could not talk about the union. When asked by the Board whether, to the best of her knowledge, any member of the management was aware that she was circulating the petition, Ms. Vandendriessche answered: I'm sure Liz (Ms. Brown) was. She probably saw me when I was getting the ones in the cafeteria. She didn't say anything to me about it."

10. Ms. Brown testified as follows concerning the circulation of the petition:

"I saw [Jean Vandendriessche] walk around with it.. . I was aware of the petition being circulated on the floor for a couple of minutes—five minutes. I didn't want to get involved with it so I just walked away. I stayed clear of it."

11. Although as indicated above Ms. Brown is classified as a "Lead Person" and is included in the agreed upon bargaining unit, she is perceived by at least some of the employees as being their "supervisor". Evidence adduced by the applicant trade union establishes that when a sewing machine operator is hired, Plant Manager Robert Sharman provides the new employee with a form which specifies his or her position, rate of pay and starting date. This form also contains the following information: "Your supervisors [sic] name is Elizabeth Brown." The evidence further indicates that the following notice was posted on the plant bulletin board in August of 1980:

"Attention All Employees

Effective August 29, 1980, the plant will be going on our winter shift 8:00 am to 4:00 pm. Morning break will be from 10:00 am to 10:10 am. Afternoon break will be from 2:00 pm to 2:10 pm.

Yours Truly,

(signed) Elizabeth Brown

Plant Supervisor."

12. Although Ms. Brown does not hire or discharge employees, she does allocate work among the operators, sign work production reports (as "supervisor") concerning their productivity, and ask them if they want to work overtime. When an employee returns to work following absence, she completes and signs the sheet which specifies the reason for the absence. Moreover, she meets with Mr. Sharman frequently and recommends from time to time that he call certain employees into his office to "talk to [them] because their production is low". Ms. Brown also "attends with them when they go into the office".

13. The evidence adduced before this Board does not establish that Ms. Brown exercises managerial functions" within the meaning of section l(3)(b) of the Act. However, in determining the voluntariness of a petition, the Board is concerned with what was reasonably perceived by the employees rather than with objective reality (see Fibre Therm Corp., [1980] OLRB Rep. Aug. 1 l96and Dad's Cookies, [1976] OLRB Rep. Sept. 545). Having regard to all of the evidence and the submissions of the parties, the Board finds that employees would reasonably perceive Ms. Brown as being in greater proximity to managerial authority than other employees. Moreover, in view of the close communicative ties between Ms. Brown and Mr. Sharman, the Board concludes that the circulation of the petition on the respondent's premises during working hours by Ms. Vandendriessche while Ms. Brown was present and able to observe at least part of the circulation, would cause an employee to reasonably suspect that the petition had the tacit support of management and to be concerned as to whether or not management might become aware of his or her decision to sign or not to sign it.

14. The burden of proving that, on the balance of probabilities, the petition represents a voluntary statement of desire on the part of the employees who signed it lies upon the objectors (see Leamington Vegetable Growers Co-operative Limited, [1974] OLRB Rep. June 402). Having regard to all the evidence before it, the Board finds that the objectors have not discharged that burden and that the petitions do not cast doubt upon the continued support of the members of the applicant for its certification.

15. In addition to the facts set forth above, there are also a number of other facts which support the Board's conclusion that the voluntariness of the petitions has not been proved on the balance of probabilities.

16. The evidence establishes that during the second interview in the respondent's hiring process, each employee is required to read a copy of the following document which is typed on the letterhead of the respondent:

"Our Company does not believe that union organization is necessary since we feel it desirable for an employee to deal directly with management without the interference of a third party attempting to represent or speak for them. It is now not necessary and will not ever be necessary for any of our employees to belong to a union in order to work at our plants.

Our Company has always tried to deal fairly with its employees in every way and provide everything that goes toward making up a good job for any of our people who sincerely and honestly deserve such an opportunity. We are convinced that our employees prefer to deal directly with our management rather than through a union. We are also convin­ced that our employees value their rights as free individuals to handle their own affairs and to speak for their own jobs without being dictated to and controlled by outside union leaders who in most instances know nothing about their jobs and are not really interested in them and their job problems but only in part of their paychecks each week.

We are also convinced that wherever there are unions there is trouble, strife, and discord, and that a union would not work to our employees' benefit. In view of this, it is our Company's positive intention to oppose unionism by every proper means.

It is quite possible that from time to time our employees may be approached by a union representative attempting to convince them of the advantages of organization. We are aware that the union can make many false promises and claims, and distort facts on our business, profits, and many other areas that affect us, and we feel confident that our employees working rather get and will seek from supervision and management advice on any matters that concern them. Therefore, we urge that if employees are 50 approached by union representatives, they seek the ad­vise, counsel, and necessary explanations from supervision on any questions that may arise relating to this subject.

It is also important for us to remember that any employees who may choose to join or belong to a union are not going to get any advantages or preferential treatment of any sort over those who do not join or belong to a union. Also, if anyone causes any of our employees troubles or difficulties at work, or puts any of our employees under any sort of pressure to join a union, it should be immediately reported to our Company's supervisors so that we can see that it is stopped. No employee will be allowed to solicit for the union, carry on activities or any other outside activities during his working time or with another employee during that employee's working time. Any employee who does so and thereby interferes with his own work or the work of other employees will be subject to immediate discharge."

Mr. Sharman testified that he provides each prospective employee with a copy of that document during the second interview but "most of the time" does not permit the employee to retain the document for the following reason:

"I'd take it back to keep it between the person and myself. I was afraid that it wasn't the right thing to do. I wanted to protect myself a bit."

17. It is unnecessary for the Board to decide in the present case whether the use of that document by Mr. Shaman on behalf of the respondent constituted an unfair labour practice. It is sufficient for the purposes of this case to note that through this document (which at least one employee was permitted to retain), each prospective employee was clearly and emphatically advised of the respondent's strong opposition to unionization. Furthermore, that document provides the backdrop against which all of the other evidence in the case must be viewed. Of particular importance are the two final sentences which provide further grounds upon which employees could reasonably conclude that the circulation of the petition by Ms. Vandendniessche in the plant during working hours had the tacit support of management, for if the circulation of the document was an "outside activity" which was not supported by management, Ms. Vandendriessche would have been risking "immediate discharge".

18. The evidence further establishes that Mr. Sharman met with the employees during their breaks from time to time to discuss matters relating to the plant. These informal meetings occurred approximately three times per month. In August of 1980, he congratulated the employees for reaching the break-even point of $26,000. However, it was his evidence that on September 2, 1980, Thomas Kerr, the person to whom he reports, advised him that the Comptroller had made an error concerning the break-even point, which was actually $38,000. Mr. Sharman went to the cafeteria during a break on September 12 or 15, 1980, and informed the employees at what he described to be a "shocking meeting" that the break-even point was $38,000. He also stated that he would be discharged and the plant might be closed unless the

$38,000 level was achieved in September. Ms. Vandendriessche testified that the September meeting differed significantly from previous meetings. During cross-examination she stated:

"This was the first time that it was serious. I don't like to see anyone lose their job or a plant close down. Mr. Sharman had never said that at previous meetings. I took it very seriously. The other people in the plant were also affected.."

19. This Board is quite suspicious of the timing of the announcement of the possible closure of the plant in view of the fact that Mr. Shaman had received the "shocking" information concerning the new break-even point at least ten days prior to the meeting. However, even if Mr. Sharman did not intend to influence the employees' freedom of choice with respect to joining the applicant in support of a certification application, it is probable that his statements at that meeting did in fact create an atmosphere in the plant in which at least some of the employees were concerned about their job security and signed a petition because they feared that they might lose their jobs if the applicant were certified. As stated in Valley Bottling of Canada Ltd., [1978] OLRB Rep. Aug. 784, at paragraph 17:

"The Board has held in numerous decisions that a natural suspicion attaches to a statement of desire which follows on the heels of a union organizing campaign. The Board must assure itself that employees who have first indicated support for a trade union and then indicate a desire to withdraw that support have undergone this change of mind by their free choice; that is, free of overt or subtle influences issuing from the employer against the union. The Board, in assuring the rights of employees under the Act to select or reject a trade union as bargaining agent, recognizes the opportunity that employees' dependence on the employer for their job security gives the employer to unduly influence their freedom of choice, intentionally or unintentionally." [emphasis added.]

(See also Morgan Adhesives of Canada Limited, [1975] OLRB Rep. Nov. 813 and Fibre Therm Corp., supra.)

20. A further very disturbing aspect of the instant case is the fact that Mr. Shaman called employees into his office in pairs prior to the circulation of the petition by Ms. Vandendriessche. During cross-examination concerning those meetings, he stated:

"This took place all one day. I think it was prior to the 12th [of September, 1980]. 1 know I did do it. I'm not certain when. It could have been after the 15th or prior to the 12th. It could have been either one of these two weeks... I asked Liz Brown to send in two people. As they left, I asked one of them to send in another two people by name. In a couple of cases I specifically picked two different people. I wanted to have two different people who could communicate in two different ways. I tried to get a person who is more dominant and a person who is less dominant. I called them in in order to get an honest response. I wanted people to pair up. I called them in because someone had accused me of swearing at them. It could have happened but I did not remember swearing at them. I asked them: 'Have you ever heard me swear at anyone in the plant? Have I ever sworn at you in the plant? I wanted them to answer honestly because I wanted to know if I had done it and wasn't able to remember...I asked them if they thought I was fair with everyone… . I first became aware that someone had said that I had sworn at them five or ten days earlier. It was on my mind. I discussed it with my wife. She suggested that I bring them in and ask them about it."

After a recess during the final day of hearing, Mr. Sharman stated in response to a leading question from Mr. Lee (who examined him on behalf of the objectors): "I was in Kingsville, Ontario, on the 18th [of September, 1980] 50 it had to be prior to that that I spoke to the employees [two at a time] in my office."

21. Ms. Rita Latulippe testified that about two days after the meeting in the cafeteria at which Mr. Sharman mentioned the possible closure of the plant, he "called pretty well everyone in to meet with him two at a time." She further testified:

"He asked what he had done personally to any of us - had he ever sworn at or done anything to offend us? If so, we could tell him openly. He went on to say that the plant may be closing but that he hoped that instead of closing that they would put another manager in to give the plant a chance."

Ms. Latulippe impressed the Board as being a candid and reliable witness and we accept her testimony as an accurate statement of the events in question, notwithstanding Mr. Sharman's denial that he mentioned the possibility of closure when he met with the employees two at a time in his office. We also accept her evidence that these meetings occurred after the aforementioned meeting in the cafeteria.

22. One of the employees who testified before the Board on behalf of the objectors stated that another employee attempted to persuade her to join the applicant trade union on the basis of "things that she [the other employee] had to say against Mr. Sharman". Although she could not remember exactly what was said, her evidence together with the aforementioned evidence concerning Mr. Sharman's meetings with employees in pairs would permit the Board to draw the inference that Mr. Sharman was advised that union organizers were telling employees that he had sworn at or otherwise treated employees unfairly. If no mention of unionization accompanied the information given to Mr. Sharman concerning his alleged mistreatment of employees, it is difficult to understand why he would have resorted to the extraordinary step of interfering with production during a period in which increased production was (according to his evidence) crucial to the continued existence of the operation, by calling employees into his office in pairs to ask them if he had ever sworn at them or treated them unfairly. Moreover, as discussed above, whatever Mr. Sharman's actual intent may have been, it is probable that the effect of his actions was to create an atmosphere in the plant in which at least some employees signed a petition out of concern for their job security rather than out of a voluntary "change of heart" with respect to their continued support for certification of the applicant.

23. For all of the foregoing reasons, the Board repeats the finding set forth above that in the circumstances of this case, the objectors have not proved on the balance of probabilities that the petitions represent voluntary statements of desire on the part of the employees who signed them. Accordingly, the petitions do not cast doubt upon the continued support of the members of the applicant for its certification.

24. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 24, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

25. Counsel for the respondent contended that even if the Board was not satisfied as to the voluntariness of the petitions, it should nevertheless exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken, since, in his submission, all the employees had taken a position either in favour of or against the trade union. He further argued that in the circumstances of the instant case, management has the right to know that the certified bargaining agent has in fact the mandate of a majority of the employees.

26. Notwithstanding the able submissions of counsel for the respondent, the Board in the exercise of its discretion under section 7(2) of the Act declines to direct that a representation vote be taken. Having regard to all of the evidence and submissions of the parties, we are not satisfied that circumstances exist in the present case which would make it appropriate for the Board to depart from its general practice of certifying without a vote in the absence of circumstances which cast doubt upon the continued support of the members of the applicant trade union for its certification or which cast doubt upon the validity of the appli­cant's membership evidence. Moreover, in view of the atmosphere which has been created in the plant intentionally or unintentionally by Mr. Sharman, the Board is of the view that in any event, the true wishes of the employees with respect to certification of the applicant would not. likely be revealed by a representation vote.

27. A certificate will issue to the applicant.

DECISION OF BOARD MEMBER C. G. BOURNE:

1. I would agree with the majority of the Board that the objectors have not proved, on the balance of probabilities, that the petitions entered in evidence, represent voluntary statetments on the part of those employees who signed them.

2. Nevertheless I am firmly of the opinion that the Board should exercise its discretion under section 7(2) of the Act, and order a representation vote. From the testimony of Finneymore Lee and the group for whom he acted as spokesman, there is no doubt in my mind that they and perhaps others, would declare their wishes in a perfectly free and voluntary manner. I would therefore order a vote, as they urged upon us most strongly.