[1980] OLRB Rep. October 1368
0952-80-R Nat Salvatore and John Gerlofsma, Applicants, v. United Steelworkers of America, Respondent, v. Canadian Gypsum Company Limited, Intervener.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.
APPEARANCES: F. J. Matthews for the applicant; Elizabeth J. Shilton Lennon, Doug MacPherson and Harry Hynd for the respondent; Susan A. Bisset for the intervener.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; October 17, 1980
This is an application under section 49 of The Labour Relations Act for a declaration terminating the bargaining rights of the respondent trade union.
The respondent was certified as bargaining agent on March 28, 1979, for "all employees of the Canadian Gypsum Company Limited of Hagersville, Ontario, save and except foremen, people above the rank of foreman, office and clerical staff, technicians and students employed during the school vacation period". No collective agreement has ever been signed. A lawful strike commenced some time in September 1979 and dissipated some time in November. No further negotiating meetings have taken place since that time.
On June 17, 1980, royal assent was given to The Labour Relations Amendment Act, 1980, (No. 2), S.O. 1980, c. 34, which in effect required a mandatory dues check-off clause to be included in any collective agreement thereafter concluded. The respondent union on June 23rd sent the following letter to the intervener employer:
"Delivered by Courier June 23, 1980
Mr. L. Wright,
Plant Manager,
Canadian Gypsum Company Limited,
P.O. Box 99,
Hagersville, Ontario.
N0A 1H0.
Dear Mr. Wright:
Please be advised that we, the United Steelworkers of America, are prepared to sign a collective agreement based on the Company's final offer to us during our recent negotiations.
However, we would request that the Company make an amendment to conform to Bill 89 of the section on deduction of union dues. When this amendment has been made, we will be pleased to sign on behalf of the employees, as outlined in the certificate issued to us by the Labour Relations Board of Ontario.
While we recognize that we have been through some difficult times, we hope that the parties can now begin to build a good relationship that will serve us both well in the future.
I would appreciate this letter receiving the Company's early attention, and look forward to your response as soon as is possible.
Yours truly,
Henry Hynd,
Area Co-ordinator,
Haldimand Norfolk Region.
HH/p
opeiu-343
cc: Mr. W. C. Flemming,
Canadian Gypsum, Toronto.
(Registered Mail)"
The employer then posted this letter on the plant bulletin board, together with a memorandum which reads as follows:
"To all Employees
I was very surprised to receive this letter after the long silence from the steelworkers since the strike ended last November. Apparently it was prompted by the new labour law provisions which allows unions to force all employees to pay dues as a contract provision.
I don't know how most employees feel about this."
- The applicants filed with their application a number of signed statements indicating that the persons who signed no longer wished to be represented by the respondent trade union. These documents are in two forms. The handwritten documents bear the following preamble:
"We the undersigned Employees of the C.G.C. Hagersville Plant no longer wish the services of the United Steelworkers Union or any representation thereof."
In addition, there are typewritten documents which bear the following preamble:
"WE the undersigned employees of Canadian Gypsum Company Limited hereby signify that we no longer wish to be represented by the United Steel Workers Union."
- The two applicants, Nat Salvatore and John Gerlofsma, each initiated a petition on their own, and were not, at the outset, acting in concert. The evidence of Mr. Gerlofsma is that there was much discussion amongst the employees following the employer's posting of the respondent's letter, and that shortly thereafter, a meeting took place at the plant amongst the various foremen and members of management. When Mr. Gerlofsma encountered his superintendent returning from the meeting, he inquired of the superintendent what was going on. The superintendent responded, according to Mr. Gerlofsma:
"I can't tell you what's going on but if you are interested in doing anything about it, I have some lawyers' names I can give you. I can't do anything else."
Mr. Gerlofsma testified further that he did not know why the superintendent though he might want a lawyer. When the superintendent returned shortly thereafter with two names and telephone numbers on a slip of paper, Mr. Gerlofsma did, however, telephone the first of the two lawyers shown, and inquired what could be done about getting rid of the union. Mr. Gerlofsma then received advice in response to his query, and some time thereafter received from the lawyer (who represented him in these proceedings) the typewritten sheets now before the Board. Mr. Gerlofsma and Mr. Salvatore then called a meeting of the employees in the Hagersville Park. The meeting took place in the evening, after working hours, and was attended by a number of employees from the plant, who signed Mr. Gerlofsma's petition at that time. Mr. Gerlofsma testified that he subsequently asked other employees if they were interested in signing his petition as he saw them, and this appears to have occurred at non-working times or away from the plant. Beside each signature on Mr. Gerlofsma's petition is shown the date, time and place of signing. There are, however, interspersed with the signatures shown to have been collected at the meeting at the park, a number of signatures indicated to have been collected at other places and times, and no real explanation was forthcoming for this confusing sequence of signatures appearing on the face of the document.
- The Board's main concern, however, is the evidence of Mr. Salvatore, who collected by far the greatest portion of the 116 signatures on the combined petitions. Mr. Salvatore was less than convincing as a witness, and while he mentioned to the Board having a problem with his hearing, this by no means provided a complete explanation for the inconsistency and evasiveness of his testimony. With so major a participant, the Board could have little confidence that all of the material events surrounding the petition are before it, and on this basis alone it would be very difficult for the Board to be satisfied that the statements of desire represent a "voluntary" expression by employees, as required by section 49 of the Act. Mr. Salvatore, according to his testimony, for example, also received unsolicited from a foreman Maggio a slip of paper with lawyers' names and telephone numbers on it. Notwithstanding this, Mr. Salvatore maintained that management had no knowledge of what he was doing. Cross-examined further on his, his evidence was as follows:
Q. Did Maggio know you were interested in phone numbers?
A. Don't know. He just handed them to me and said they might help you.
Q. Why did he think you'd need help?
A. Can't do a petition without a lawyer.
Q. So he knew you were taking a petition?
A. No, not then – just knew I didn't want the union – it was a waste of money. I guess they knew when they saw the Labour Board notice posted.
Even if, however, one were prepared to accept Mr. Salvatore's evidence on its face, serious difficulties still exist with respect to the present petition. It must be recalled that the petition began to be circulated shortly after the posting of the company's memorandum, which concluded with the statement (which, to have any meaning, can only be characterized as a question): "I don't know how most employees feel about this". It is Mr. Salvatore's evidence that at the time that he drafted and began to circulate the petition, he had no idea what he was going to do with it, and could give no indication of its purpose to employees that he approached. Indeed, it is not clear that employees at any time were told by Mr. Salvatore for whose eyes the petition was being circulated, and the Board finds that employees may well have construed it as a reply to management's query. Mr. Salvatore further admitted on cross-examination that every one of the signatures which he collected (being some 87 names) were collected on company premises during working hours. While Mr. Salvatore is required in his job as a quality control tester to leave the lab and go into various areas of the plant for samples up to fourteen times a day, there was no suggestion in the evidence that his job requires him to obtain a signature on a piece of paper from the employees that he dealt with in the normal course of his duties, and it appears to the Board that the petitioning activities engaged in by Mr. Salvatore on such a broad scale would have been obvious to people generally in the plant. In all of the circumstances, the Board cannot be satisfied that there was not, on the part of the other employees, a perception that the petition being circulated by Mr. Salvatore was linked, or even directed, to management, and consequently that the identity of those who signed or did not sign would come to management's attention. Because of the responsive and vulnerable nature of employees' relationship to their employer, as alluded to by the Board on many occasions in the past (e.g. Morgan Adhesives of Canada Limited, [1975] OLRB Rep. Nov. 813; Pigott Motors, 63 CLLC ¶16,264; Peel Block Co. Ltd., 63 CLLC ¶16,227) the Board in circumstances such as these cannot be satisfied that the statement of desire represents a "voluntary" expression by the employees who have signed it.
It may well be that the posting of the company memorandum was an unlawful attempt to interfere with the relationship between the respondent trade union and the employees it represented, in violation of section 56 of The Labour Relations Act. We need not decide that however. What the company memorandum did do, was to make it difficult for any employee to satisfy the Board of the voluntariness, for the reasons stated above, of any petition following closely upon its heels. Counsel for the applicants exhorted the Board to consider the history of events preceding the posting of the company memorandum, and to speculate on whether or not a petition would have been voluntarily initiated and signed by the employees in any event. The Board, however, is required by the statute to make a finding that the statement before it was voluntarily signed by the employees in question. To do so, the Board must take the situation as it finds it, and as the parties themselves have created it. In the present case, as indicated, the Board finds that employees signing the petition may have had a reasonable apprehension that their decision to sign or not to sign would become known to management. Accordingly, the Board cannot conclude that the statement is "voluntary".
A further matter which has not gone unnoticed by the Board in this application is .the apparently unsolicited initiatives by management of suggesting to both applicants that they consult with a lawyer. Mr. Gerlofsma, in particular, was sent in that direction "if he wanted to do something about it", and it is to be recalled that this assistance was offered in response to the simple question of "What's going on?" In view of the disposition of this matter, however, the Board need not consider this particular aspect further.
The application is dismissed.
DECISION OF BOARD MEMBER J. A. RONSON:
- I agree that this application should be dismissed. The evidence of Mr. Salvatore and its presentation failed to meet the onus of proof upon the applicants in this matter. In saying this I am not agreeing with the comments expressed in paragraphs 7, 8 and 9 of the majority decision.