Ontario Public Service Employees Union v. Art Gallery of Ontario
[1980] OLRB Rep. February 140
0696-79-R Ontario Public Service Employees Union, Applicant, v. Art Gallery of Ontario, Respondent, v. Group of Employees, Objectors.
BEFORE: E. Norris Davis, Vice-Chairman, and Board Members F. W. Murray and A. Hershkovitz.
APPEARANCES: Chris Paliare and Pauline Anidjar for the applicant; Corinne Murray for the respondent; Michael H ran for the objectors.
DECISION OF THE BOARD; February 13, 1980
1The group of objectors, by letter dated January 3, 1980 directed to the Registrar, requests the Board to reconsider its decision of November 29, 1979. The grounds on which the request is made are set out in the letter as follows:
"1. The Board in its decision, and in particular at paragraphs 9 and 10, paid some considerable attention to testimony purportedly given by Albert Schilling.
In reaching its decision the Board obviously relied upon the purported testimony of Albert Schilling and in that regard I would refer to paragraphs 24 and 28 of the decision.
Albert Schilling did not give any testimony in connection with the petition. I am aware that he may have given some testimony in related proceedings under Section 79 of The Labour Relations Act, but he did not testify in our case.
There is a clear error on the face of the record in these proceedings in that the Board relied upon evidence which was not given.
Since there is a patent error in the decision and since the Board could not possibly purport to make a decision now which would appear to be just to all parties, the writer would request that a new hearing of the Board be convened before a different panel to hear the matter afresh."
2This request for reconsideration arises out of a certification application which also involved a request by the applicant that the Board make a finding under section 7a that there had been a contravention of the Act by the respondent such that the true wishes of the employees are not likely to be ascertained and that a certificate should therefore issue.
3In addition to these matters before the Board in the certification application, the Board also had a number of section 79 complaints and a request for consent to prosecute before it, all initiated by the applicant union and to which the group of objectors were not a party. These complaints were alleged to be founded on circumstances relating to the overall organizing campaign. A brief review of the procedural history of this matter, leading to the current request for reconsideration, is therefore required.
4The application for certification was filed with the Board on July 16, 1979. On July 20th the Board commenced hearings with respect to Board File No. 0600-79-U which was a section 79 complaint made by the Ontario Public Service Employees Union alleging contraventions by the Art Gallery of Ontario in its dealings with three employees, Carol Kestenberg, Lynn Burry and Harriet Stroud, of the Art Gallery. Also on July 20th the Board commenced hearings with respect to Board File No. 0563-79-U which was also a section 79 complaint involving the same parties and in which it was alleged that the Art Gallery in its dealings with three other employees, Richard Gold, Albert Schilling and Dan Thibodeau, had committed violations of the Act. The hearing of July 20th was adjourned and scheduled for continuation on August 20th. During the adjournment, two further section 79 complaints were filed (Board File No. 0785-79-U on July 27th and Board File No. 0858-79-U on August 8th).
5On resumption of the hearing on August 20th, the Board received representations from the parties as to the procedure it should follow in the hearing of these matters and the Board ruled that it would continue to proceed with the two section 79 complaints (Files 0563-79-U and 0600‑79‑U) and, on completion, would commence hearings with respect to the application for certification and thereafter to commence hearings into the remaining two section 79 corn plaints. The Board continued to hear evidence with respect to Board Files 0563-79-U and 0600-79-U on August 27th and September 10th and on September 28th heard final argument with respect to both files. By decision dated October 20, 1979, the Board found the Art Gallery of Ontario had contravened certain sections of The Labour Relations Act in its dealings with Richard Gold, Albert Schilling, Carol Kestenberg, Lynn Burry and Harriet Strouci. Written reasons were subsequently issued under date of November 28, 1979.
6On October 10th the Board opened hearings into the application for certification and commenced the receipt of oral testimony relating to the circumstances concerning the origination of statements of desire filed with the Board and relating to the manner in which each signature on such statements was obtained. Evidence into these matters continued to be heard on October 11th and on November 7th.
7At the opening of the hearing on November 7th, the Board was informed by counsel for all the parties that they were agreed on requesting that the Board, on conclusion of evidence relating to the statements of desire, then hear argument as to what conclusions the Board should draw as to the voluntary nature of such statements. Counsel joined in urging the Board to issue a decision in this regard at an early date and without awaiting final disposition of the entire application. It should be noted that at this point of the Board's processing of the certification application, there remained two additional elements yet to be examined; one being the applicant's request of July 17th that the Board exercise its discretion under section 7a of the Act to issue a certification without a representation vote and, the other, a determination of the appropriate bargaining unit which continued to be the subject of examination of a Labour Relations Officer.
8The Board acceded to the request of the parties and agreed to proceed in the manner suggested and to isolate the issue of the statements of desire. This decision of the Board represented a departure from its more normal practice of receiving evidence in respect to all matters in issue in a proceeding prior to receiving final argument. The decision was justified in the Board's mind on the grounds that it might expedite final disposition of the entire certification matter. This was the position of all counsel.
9In any event, the Board, after hearing some further testimony on November 7th, received argument of all parties with respect to what decision the Board should make regarding the statements of desire of the objectors. Counsel for the objectors then withdrew with an apparent general understanding between counsel that he would be notified as to when, in the ongoing proceedings, issues of interest to the objectors were likely to come forward. The Board continued that day to commence to take evidence relating to the applicant's section 7a request, including testimony from Albert Schilling which latter evidence the Board canvassed in its decision of November 29, 1979 and which has attracted the objection by Mr. Horan for the group of objectors. The hearing was then adjourned to be continued on December 6, 1979. Prior to reconvening on December 6, 1979 the Board issued its decision of November 29, 1979 in which the Board ruled that it was not satisfied that the statement of desires and petitions filed on behalf of a number of employees represented a voluntary expression of the true wishes of the said employees. At the Board hearing on December 6, 1979 evidence in respect to the section 7a matter was concluded and final argument in respect to that matter was received. The Board then adjourned the proceedings to be continued at a later date in respect to the determination of an appropriate bargaining unit, and proceeded on December 7th to deal with an application for consent to prosecute filed by the union on August 27, 1979 and naming as respondents, William J. Withrow, Herbert D. Grant, Catherine Goldsmith, John Rusekas, Nancy Hushion, Jack Willson, Wilbert Headley and The Art Gallery of Ontario.
10On December 10, 1979 there was filed with the Board a written agreement between the applicant and the respondent in which, inter alia, the parties agreed on a description of the appropriate bargaining unit save for four classifications which remained in dispute between them. On December 10, 1979 the applicant, in writing, requested that the Board exercise its discretion under section 6(la) of the Act to certify the applicant. The Board, on December 28, 1979, issued a decision which certified the applicant pending the final resolution of the composition of the bargaining unit.
11The Board referred the objectors' letter request of January 3, 1980 for reconsideration to the other parties inviting comments. Subsequently a hearing was held to receive representations of all parties. The Board acknowledges that in paragraph 28 of its November 29th decision the reference to a Board decision of August 23rd is an obvious typographical error. The reference should have been to a Board decision of October 30th in respect to a section 79 complaint. It was Schilling's participation in that proceeding which was referred to in Headley's evidence as to the circumstances surrounding the signing by Schilling of the letter of withdrawal and the petition. The Board acknowledges that the evidence of Schilling was heard in connection with the applicant's request that the Board exercise its discretion under section 7a. This evidence was heard after Mr. Horan had withdrawn from the proceedings and it is the canvassing of this evidence by the Board to which he objects. The question before us is what, if anything, should the Board now do in order to respond to Mr. Horan's concern.
12Counsel for the objectors (in whose representations counsel for the respondent joined) argued that while the entire certification application could be heard afresh by a different panel of the Board, the Board also had the authority under section 92(2)(h) to make a reference to another panel of the Board for the sole purpose of making a determination as to the voluntariness of the statements of desire. Counsel referred us to the statement of the Board in the case of Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. Sept. 609 where the Board, in discussing its jurisdiction under section 95(1) of the Act, stated:
"However, this jurisdiction is very carefully and cautiously exercised by the Board in that free recourse to the Board after the initial disposition of a matter would substantially undermine those values of speed and economy associated with the administrative practice of this Board."
Counsel emphasizes that the "values of speed and economy" should cause the Board to take the course of a restricted reference to another panel, and that a fresh hearing by a new panel is necessary in order that justice be seen to be done. Alternatively, counsel argues that the Board should exercise its discretion under section 7(2) of the Act by ordering a representation vote and that this course also meets the test of "speed and economy". Important to both proposed courses of action it was argued was that they would lend "the reasonable belief that justice was being done".
13The applicant argues that in the total context of the certification application it is not possible to isolate out the issue of the voluntariness of the petition from other aspects of the case, and that, even if it were, the fact that three days of hearing were required on that issue by this panel and in the case of a fresh panel it might be more extensive indicates that the proposal does not meet the "speed and economy" test. The applicant discounts the need for a fresh hearing by a new panel in order that justice be seen to be done. He points to the fact that all parties were aware that this panel of the Board, in addition to hearing the certification application, also heard and decided on other interrelated proceedings and that the objectors were also aware that while the Board was considering the matter of the voluntariness of the petition, it would be going forward to hear evidence in respect of the application of section 7a. In respect to the objectors' proposal that a vote be directed, the applicant argued that this avenue would be no less costly and no more expeditious than other alternatives available to the Board and runs counter to the representations made by the applicant in the section 7a issue that under all the circumstances a vote would not be likely to ascertain the true wishes of employees.
14The applicant argues that the Board should consider two other alternatives available to it: either to recall Schilling and rehear his evidence with the objectors having the right of cross-examination and reply, or to disregard Schilling's testimony and make a decision considering only the remaining evidence. The objectors argue that to hear Schilling's evidence anew is similar to permitting a party to use reconsideration proceedings to cure a defect in his case; and that the proposal for this panel to now disregard the evidence of Schilling and make a decision based on the remaining evidence would inevitably leave the decision with an appearance of justice not having been done.
15Section 95(1) of the Act explictly confers on the Board a broad power of reconsideration and reads, in part:
"... the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling..."
16In the instant case it is alleged that the Board erred in respect to considering the evidence of one witness. It is our view that the possible correction of errors of this type must have been within the contemplation of the Legislature in providing the Board with powers of reconsideration in section 95(1). The issue before us is whether or not the particular error alleged can be appropriately cured by the powers conferred on the Board under this subsection.
17It is argued that the reconsideration of the matter should not be by this panel of the Board as presently constituted because of the apprehension of bias arising out of the fact that the present panel had previously made a decision on the matter. However, the decisions in Posluns v. Toronto Stock Exchange 1968 CanLII 6 (SCC), [1968] S.C.R. 330, and in Re French and the Law Society of Upper Canada 1972 CanLII 504 (ON HCJ), [1972] 2 O.R. 766 establish the proposition that the mere fact that a tribunal has previously made a determination on the issue does not, in itself, raise a reasonable apprehension of bias which would prevent that same tribunal from again considering the issue fairly and honestly.
18It must be noted that in the prior proceeding the Board had heard eight witnesses over the course of three days under circumstances such that the rights of all parties were observed and the evidence of those witnesses was unflawed by any procedural defect. It must also be noted that the Board then received the argument of all parties as to the conclusions the Board should draw from such evidence. It was following this that the Board received the evidence of one witness, testifying as to another issue in the overall proceedings and which, it is alleged, the Board wrongly took into consideration in arriving at a conclusion in respect to the issue as to the voluntariness of the statements of desire before it. The evidence of that one witness was distinctive in that it did not touch on incidents or events to which the other witnesses testified. We also note that the Board has heard much evidence in the many related applications and complaints between these parties and has done so with the knowledge of all the parties. Indeed, to have many different panels of the Board hearing all these related applications and complaints would have been inefficient and chaotic. We are satisfied that under these circumstances such evidence can be isolated and fairly disregarded in any re-evaluation of the weight to be accorded to the statements of desire. We have concluded, after considering the representations of counsel, that in the circumstances of this case this panel of the Board as presently constituted may properly proceed to reconsider this matter.
19For these reasons there is no useful curative purpose served in re-hearing the evidence of the eight witnesses previously heard: all parties were present and participated in the hearing of this testimony and all parties were then content that the Board should make its decision based on that evidence. Given the discrete nature of the evidence objected to, we have concluded that for the Board to now spend additional days in receiving the unimpugned evidence unnecessarily makes for further lengthy delays in what has already been a protracted proceeding; militates against the purpose of "speed and economy" underlying the Board's reconsideration powers; and is not necessary to guard against legal bias.
20The Board therefore now directs its mind to considering afresh the evidence previously properly adduced, and will now set out its review of the evidence heard and without consideration of any evidence other than that of the eight witnesses above referred to and without regard to any determination made in any other proceeding before the Board.
21In the instant case a number of statements of desire were filed with the Board. One such was a document prepared by Mr. Brian Stratton and bearing the signatures of himself and two other persons, which latter Stratton secured. The Board is satisfied from Stratton's evidence of the voluntariness of this document.
22The Board also had a further statement of desire filed with it and bearing one signature. No person appeared before the Board to give evidence as to the origination of this document and the Board is unable to make a finding as to its voluntariness.
23There were 11 individual signed letters to the Board all bearing the date of July 13, 1979 and bearing the typewritten text (and repeated in the handwriting of the signatory), "I wish to withdraw my support of OPSEU in its negotiations with the Art Gallery of Ontario". This form letter was actually prepared by Mr. Headley on July 10th at which time it should be noted that the application for certification had not yet been filed and the date of July 13th was placed on the letter as being Headley's best estimate of when the certification application would be filed.
24Headley testified that he had gone to the Board offices during his morning coffee break on July 10th and showed a copy of the draft letter he had prepared to an Information Officer, secured copies of the Act and other information and returned to the Art Gallery. He then had the form letter typed by a secretary in the Audio-Visual Department and then ran off duplicate copies without charge on duplicating equipment in the adjoining library.
25One of these withdrawal letters was signed on July 12th by Michael Hough, a maintenance worker. Hough testified that prior to the start of work on July 12th he participated in a discussion which took place in the Maintenance Department locker room where it is customary for some employees to gather before work, read the newspaper and have coffee. J. B. Willson, Hough's supervisor, is regularly in attendance at such meetings and on the morning of July 12 in addition to Willson and Hough, there were two other employees. On this occasion, according to Hough, Willson introduced the union topic and spent 5-10 minutes expressing his personal point of view in respect to the union. Hough states Willson is not in favour of the union and Willson's personal point of view which he expressed, is opposed to it and that Willson talked about contracting out only in the context of what a contracting maintenance worker earns. Hough stated he had signed a union card but, in his words, "Willson never asked me at the beginning because he knew I had joined the union on the previous time. I don't know if he knows I signed a withdrawal statement". Hough stated that in response to Willson he told Willson of the difference between what he got paid and "what the Union could offer me" and Willson was showing him that other professions also made more than Hough. Hough stated that "I think everyone knows how Willson feels about the Union anyway because of the previous year", and that the conversation did not cause him to change his mind and that he had changed his mind because he planned to leave the Gallery in September and felt his vote should not be counted one way or the other.
26Hough, who stated that he was not at that time aware he could revoke his union membership, sought out Headley at his work place at lunch break on July 12th as he had heard from other employees that he could withdraw his support by contacting Headley. Hough knew Headley fairly well as a result of discussing sports, etc. with him "sometimes in my bosses office at coffee or lunch, or around the Gallery". Headley supplied a withdrawal form from a duffel bag that he always carried to and from work, and Hough signed.
27On July 13th Hough was approached by a group of three persons during lunch hour enquiring as to whether Hough knew how to withdraw from the Union. Hough acknowledged that he did and contacted Headley after work on that day, and secured additional copies of the form on July 13th, secured signatures of the three and returned the documents that day to Headley.
28Harold Boyd, Supervisor of Cafeteria, was also an employee who signed a withdrawal letter. Boyd testified that some time in July he met J. B. Willson who made the statement, "I thought you were fairly intelligent" and that in response to Boyd's question of "why?", Willson alluded to the fact that he knew Boyd had signed a union card, and Boyd told him he had. According to Boyd there was a second conversation at some later time in the staff lounge where Willson told him if he wanted to withdraw his union card he could. Boyd says he had told Willson previously that he wanted to withdraw and had phoned the Labour Relations Board and had been told that he was unable to do this, which statement he testified was a lie which he entered into because he had been listening to a few stories that he would lose his job if the Union didn't get in and, in his words, "I was trying to protect myself. I don't think I'll start anything again". Boyd states that during this conversation Headley came into the staff lounge and Willson asked him "if he had whatever it was I had to sign" to which Headley replied that he didn't but would go and get some. Willson then left. Headley returned with the form and Boyd signed it. Boyd also subsequently signed the petition and when asked in cross-examination as to why he signed the petition, his reply was "Same reason as for withdrawal. So management would have my name down as being against the Union".
29Headley's version of Boyd's signing a withdrawal form was that he (Headley) walked into the staff lounge, saw Boyd there and asked him of he'd like to sign a withdrawal and that Boyd responded affirmatively and signed the form whereupon Bradley thanked him and left. Headley states Willson was not present during this conversation as Willson had walked out as Headley walked in to the lounge. Headley further states that at the time he was carrying his supply of withdrawal forms on his person because of a "break in". In cross-examination the question was put to Headley that when he entered the lounge Willson and Boyd were talking and that Willson asked Headley if he had any withdrawal forms on him and that Willson told him to go and get some. To which question Headley replied that it was not true and had not taken place. When the further question was put to him as to why Boyd would lie about it, Headley related a telephone conversation he had had with Boyd. Headley states that "when all this took place" Boyd had phoned him saying someone had found out he had signed for the Union and they wanted him to go to the Board and say that he had been harassed by Headley. Headley then went to see Boyd who told Headley that he was going to receive a subpoena to go to Court and testify that Headley had harassed him. Boyd stated he couldn't do that because Headley had not harassed him. Boyd also said "I want to keep all my friends, but my friends are going to be mad at me - they are mad anyway". Headley further testified that he visited with Willson on virtually a daily basis as they had common interests in "Armed Forces, football, sports, girls" but never discussed Gallery matters, and that they had never talked about the petition but that Willson "knew how I felt. He knew last year I had the petition in my hand. A lot of rumours go around the Gallery".
30A question for the Board is whether Boyd's testimony is to be accepted as to the circumstances surrounding his signing of a withdrawal letter, or whether, as is argued by the objectors, the reply evidence of Headley to the effect that the incident could not have occurred in that manner because of Headley's practice of carrying his supply of withdrawal forms on his person which would have precluded any likelihood that he would have had to go and get some forms and then return to secure Boyd's signature. On this point the Board notes that Hough testified that when he secured a withdrawal form from Headley, Headley took that form from a duffel bag which he carried to and from work. The Board also notes that Headley in his evidence in chief relating to the custody of these forms made no mention that there was a time after which he exclusively carried the forms on his person: his testimony was, "I kept them in my pocket or locked up downstairs or in my briefcase. Not out of my possession. I brought them to the Board on July 18th."
31In respect to the general attack on Boyd's credibility because of the telephone conversation between him and Headley, the Board interprets this conversation as meaning that Boyd intended to come to the Board and tell the truth even though it might cost him friends, and we find no basis to conclude that he did otherwise. On the basis of all the evidence the Board accepts Boyd's evidence where it is in conflict with that of Headley.
32The application for certification was filed with the Board on July 16th and the Board's Form 5 Notice to Employees of such application posted on the Art Gallery premises at 4:00 p.m. on July 17th. On July 18th Headley hand-delivered to, and filed with, the Board 9 letters of withdrawal; two letters of withdrawal came into existence on July 23rd and were filed with the Board along with the petition document (which we shall deal with later) containing 59 names on July 23rd at 2:44 p.m. The circumstances surrounding these latter two letters of withdrawal were as follows.
33Schilling was a subpoenaed witness in connecion with a Board hearing into a Section 79 complaint on Friday, July 20, 1979. Headley testified that on Monday, July 23rd around 12:50 p.m. Schilling approached him and told Headley he wanted to get out of the union and that: he wanted to withdraw his statement about Jack Willson "because Rick Gold had put him up to it". Headley made phone inquiries at the Labour Relations Board and explained that Schilling was "upset and didn't want to come back". Schilling, in response to a question from Headley as to what had gone on, stated, he just wanted to get out of everything and that "I went in there and all of a sudden this guy starts writing things down". In any event Headley gave him a withdrawal form and he signed it, and at the same time signed the petition.
34Headley testified that Patsy Pelletier who signed both a withdrawal form and the petition came to him about 8:05 a.m. on July 23rd as a result of Headley having spoken to Pelletier's girl friend on July 21st and asking her to tell Pelletier he wished to see her. Headley states that at some time he had been told by Willson of a missing credit card while having coffee with Willson in his office at 7:45 a.m. one morning and that when he saw Pelletier coming, he then left and was not present at any ensuing conversation between Willson and Pelletier. Headley states that on July 23rd Pelletier opened the conversation with, "I want to sign the petition", and when asked if she had signed a union card she said 'I like to withdraw from the Union also".
35In respect to the origination and circulation of the petition, Headley testified that he had a discussion with Charlie Simmons, a carpenter who reports to a Miss Margaret Machall and asked Simmons what he thought about preparing a petition, and Simmons expressed himself as, "If the other party can get names, why can't we?" Headley had some weeks earlier discussed the organizing campaign with Simmons because Simmons was the one who had not rid of a union at the Gallery a couple of years ago. On July 23rd Headley was on his way out to make a delivery when he asked one, Ivan McMillian in the Shipping Department Headley identifies him as Traffic Manager) if he would type it up for him, which McMillan did. McMillan refused an invitation to sign it on the basis that he hadn't signed for the others and wasn't going to sign for Headley. Headley then was then off the premises between 10:30-11:45 a.m. and started to secure signatures about 12:00-12:15 p.m. The first signature was his own and the second signature was that of an employee in Headley's department.
36The third signature is that of Charlie Simmons which is identified as P.8, and there is a conflict between his evidence and that of Headley as to when that signature was affixed. Headley, in chief, testified that on July 19th he wanted to take the petition over to his department and get support, which Simmons did and returned it to Headley about 3:00 p.m. the same day with no additional signatures on it. Simmons' testimony is that while he could not fix a date when the petition was in his possession, he was quite positive that it was around 10:00 in the morning and uses as a memory reference point the fact that he took the petition up to the cafeteria where all the girls were on coffee break, held up the petition, asked if they wanted to sign, received a negative response and left. Simmons points out that it is only at the morning coffee break that the girls are all together and that it could not have been at an afternoon c6ffee break because the girls take staggered breaks in the afternoon. Simmons also stated that he returned to his shop from the cafeteria, gave the petition to Headley and then went on his way. Headley, in cross-examination, admitted he could be wrong about the time when he gave the petition to Simmons and, at another stage that he couldn't really recall what time he gave the petition to Simmons. He tends to corroborate Simmons' evidence when he testified, "Yes, I left the petition with him for a little time and I think as a matter of fact I waited in that little room till he came back". The Board concluded that Simmons was in possession of the petition during the morning coffee break and since the petition was not in existence until after the morning coffee break on July 19th that the date of his possesion must have been July 20th, and that at the time of his possession there were then 3 signatures on the petition.
37On Saturday, July 21st Headly secured two signatures, and on Monday, July 23rd four signatures were secured prior to the start of work between 6:45 a.m. or 7:00 a.m. and 8:00 a.m. and six signatures were secured after the start of work (three of which were during Headley's lunch hour). The Board therefore concludes that 44 of the 59 signatures were secured on July 20th.
38On July 20th Headley states that he went upstairs to get signatures, went into the office of Joyce Rowland, Acting Assistant Director to ask her what her position was and if she would support the petition. Rowland said "No" and Headley left. Later, at 3:30 p.m. that day Headley returned a phone call from Rowland who then told him that "just want to warn you same thing goes as for other people. No soliciting on Gallery time". Headley states he said "OK" and it was then he decided to come in on Saturday to secure signatures. Headley states he was not aware that the time of his contact of Rowland that she was managerial. Stratton, in his evidence, states that Rowland's office is right next door to the office of the Director and that she was clearly a member of management. Rowland had previously been Co-ordinator of Volunteer Services and was promoted to her present position some time in March which resulted ultimately in Stratton being hired March 28th. Stratton states that since that date Rowland has accepted her present office. Headley in cross-examination stated that Rowland's office was not next to that of the Director and not in that area but was down in the volunteer area. When Stratton was asked in cross-examination whether he had asked Rowland to sign the document that he had prepared, his response was "No. It stated clearly on the Green Sheet who was eligible."
39On July 23rd, a good deal of Headley's time was occupied by the petition and petition-related. At some time on this day it is obvious that he picked up the covering letter to the petition which was dated July 23rd and which was typed by Norma Elms, a secretary in the Audio-Visual Department. Headley could not recall when he had given the letter to Elms for typing and speculated that it could have been that morning or on the preceding Friday. Headley testified that about 10:00 a.m. he was spoken to by Mr. Grant, Director of Administration, who told him, "I understand a petition is going. Just want to warn you, no solicitation on company time. Same goes for the other side". Headley states he responded "Fine" and left Grant's office. We accept the evidence of Gold that Headley was in Willsons's office at 10:30 a.m. and at 11:30 a.m. but make no inference as to the purpose of his presence. According to Headley, he was out of the Gallery on a delivery for some period returning to the Gallery around 12:00 noon. At that time he went upstairs to secure more signatures, ran into Stratton and collected his petition, learned that Albert Schilling was looking for him and met Naster in the hallway where they talked at Headley's invitation for 10-15 minutes and then moved into Naster's office, and based on Naster's evidence spent, all told, 45 minutes with Naster. Following this conversation Headley went out of the Gallery for his lunch, secured one signature for the petition while out of the Gallery, went back into Gallery and secured a signature, returned outside and secured another signature, ate his lunch and returned to the Gallery and talked with Albert Schilling, including phoning the Labour Relations Board to secure information on Schilling's behalf, secured Schilling's signature to the withdrawal letter and to the petition and secured one other signature to the petition. He was then out of the Gallery for some period attending at the Labour Relations Board to file the petition documents which are time-stamped "2.44 p.m. July 23rd".
40Richard Naster has been Acting Administrator of the Gallery Shop since July 1, 1979 having previously been employed as Buyer. As such he states he reports directly to Grant, makes recommendations as to size of complement (presently varying between 6-7 persons), schedules work and makes sure work is completed and that the shop runs smoothly. There is a dispute between the parties as to whether this position should be included in the bargaining unit, which the respondent opposes on managerial grounds. When asked if he was aware how long he would be in an "acting" capacity his response was that his status was very mud. up in the air, that he had applied for the job and things are still being discussed but that he had received a salary increase when he assumed the "acting" role.
41Naster states that he was standing in the corridor adjoining the Gallery Shop around noon hour of July 23rd when he was approached by Headley who asked if they could talk for a few minutes, to which Naster assented. Headley stated that there was a petition in opposition to the Union and Naster indicated that fact to be of some interests to him. Headley then showed him two different papers one of which was in opposition to the Union and the other a withdrawal form. Naster states this was his first knowledge of the existence of a petition. They spent 10-15 minutes discussing a few things in the hallway which Naster describes as well-travelled with half a dozen people per minute going by. They then withdrew to Naster's office which is in the general area. Discussions continued in the office for another 30-35 minutes and consisted mainly of Naster exploring different points regarding the union and the petition and with Headley at some stage spending some 15 minutes in a "less than complimentary discussion of two members of the organizing committee" to which Naster expressed himself as "greatly surprised". Naster states he had had no previous conversation with Headley.
42The question to be determined by the Board is whether the documentary evidence before it in the form of withdrawal letters and the petition represents the voluntary expression of opposition to the applicant's certification by the employees who signed such documents.
43The Board's practice in regard to "statements of desire" or "petitions" is well set out in the case of Peacock Lumber Ltd., [1979] OLRB Rep. May 423 where the Board, at paragraph 7 says:
"Neither "statements of desire" nor "petitions" are mentioned in the The Labour Relations Act itself, but they do appear to be contemplated by Rule 48 of the Rules of Practice (R.R.O. 1970 Reg. 551 as amended). The Board has a long-standing history 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 that same decision, the Board at paragraph 8 says:
"Rule 48 casts upon the petitioners an onus to call evidence as is 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 genuiune 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 actual, or perceived, influence of management ..."
In respect to the voluntariness of statements of desire reference is made to Radio Shack, [1978] OLRB Rep. Nov. 1043 at paragraph 24 where the Board said:
"24. 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 have 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 also 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 influences, obvious or devious, which may operate to 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. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein."
44The evidence establishes that the campaign of opposition to the union's certification (save for the opposition organized by Brian Stratton) was originated by Headley and consisted of soliciting withdrawal letters commenced before the actual filing of the certification, and soliciting of signatures to the petition subsequent to the filing of the certification application.
45In the implementation of the campaign, Mr. J. B. Willson, Supervisor of Maintenance, evinced interest and participation. The evidence shows Willson to have been clearly a representative of management and that "everyone knew" where he stood in being opposed to the union. This knowledge apparently flowed from Willson's position in a previous union organizational campaign and is further enhanced by his willingness to expound on his views, with or without invitation, for the purposes of persuading employees to adopt his views, such as the pre-work boiler room discussion between himself and Maintenance Department employees of July 12th. The evidence also establishes that there was an obvious personal relationship between Willson and Headley. The impact of Willson's activities is clear in respect to the signing of withdrawal letters by both Hough and Boyd.
46Aside from Willson's activities vis-a-vis Boyd, we find it more than coincidence that Hough who had been a known union supporter in the previous organizational campaign, and who was also a union supporter in the current campaign, should, a few hours following Willson’s comments about the union on July 12th, seek out Headley and request a withdrawal form. Hough states he had decided that since he intended to leave the employ of the respondent his "vote" should not count one way or the other. In our view the inference should be drawn that this action was triggered by Willson's comments for reasons best stated in the leading case of Pigott Motors (1961) Ltd. 63 CLLC ¶16,264 as,
“…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 vulnerable to influence, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act..."
47Willson had a deeper involvement in bringing about Boyd's letter of withdrawal. The evidence is that Willson approached Boyd on two occasions. On the first occasion he ascertained that Boyd had signed a union card and there apparently was some discussion about withdrawal as Boyd states that he then told Willson, in order to "protect" himself, that he had been in touch with the Labour Relations Board and ascertained that he could not withdraw. It was on the second occasion during the cafeteria discussion that Willson returned to the topic to tell Boyd that he could indeed withdraw his union card if he wanted, and it was on this occasion that Willson asked Headley, who had come in during the discussion if Headley had "whatever if was that Boyd had to sign". Boyd's statement as to why he signed the withdrawal letter is not without significance when he explained that it was "so management would have my name down as being against the union". The Board can only conclude that the interest and activities of Willson destroyed any likelihood that Boyd's subsequent signing of a withdrawal letter was a voluntary expression of his wishes.
48The petition document and the withdrawal letters are so intertwined that they must be considered as an integrated whole. The Board has noted that 7 of the persons who signed withdrawal letters also signed the petition and included in that seven are Hough and Boyd. There is Boyd's evidence that he signed the petition for the same reason as he signed the withdrawal letter, namely, "so management would have my name down as being against the union". The doubt which is cast on the withdrawal letters as being a voluntary expression of the wishes of the signatories thus flows through and equally casts a similar doubt in respect of the petition's voluntariness. This doubt in respect to the voluntary nature of the petition is fortified by the cumulative impact of Headley's activities on July 20th and 23rd, on which days an inordinate amount of Headley's work time must have been consumed in petition-related activities. It is clear that Headley did receive a caution from Miss Rowland, a representative of management to the effect that "just want to warn you. Same thing goes as for other people. No soliciting on Gallery time". However, this warning came later in the day of July 20th and consequently was unlikely to have much influenced Headley's total activities. It must also be noted that the warning was issued some time after Rowland had been made aware of Headley's activities by his solicitation of her support. A free hand to use working time to secure employee opposition to a trade union has the effect of conveying managerial support for the activity.
49It is also noted that Headley on the next work day, July 23rd, was called to the office of Mr. Grant, Director of Administration, about 10:00 a.m. and issued a caution similar to that received from Rowland. In respect to Headley's activities between 12:00 noon and 2:44 p.m. that day when he filed the petition at the Board's office, it must be concluded that the cautions he had received were breached. More important than whether or not the cautions in fact failed to be abided by is whether by openly exercising such wide freedom to utilize work time for petition-related activities it did not create a perception in employees that his activities had, in fact, the tacit approval of the employer and that employees were therefore "motivated by a concern that their failure to sign would be communicated to the employer". We think that in the context of Headley's known close association with Willson, a representative of management whose anti-union views were generally known, together with Headley's devotion of a large proportion of what would normally be work time to the petition and related activities, the inference should be drawn that Headley's activities of July 20th and 23rd would be seen by employees to have the tacit approval of the employer. The employee responses he obtained cannot, therefore, be relied upon by this Board as constituting a voluntary expression of their wishes.
50Based on all the evidence before us and independent of any evidence given by Albert Schilling, the Board concludes that the objectors have failed to discharge the onus of establishing the voluntariness of the statements of desire as expressions of the wishes of the employees concerned. The Board therefore affirms its decision of November 29, 1979.