Ontario Labour Relations Board
[1980] OLRB Rep. October 1472
1328-80-R United Steelworkers of America, Applicant, v. Lyman Tube, Division of Jannock Tube Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: R. D. Howe, Vice-Chairman, and Board Members T. G. Armstrong and S. H. Lewis.
APPEARANCES: Gerry Reeds and Bill Davis for the applicant; Allen V. Craig and Doug Sinclair for the respondent; Roy W. Rogers for the objectors.
DECISION OF THE BOARD; October 24, 1980
This is an application for certification.
In support of this application the trade union filed documentary evidence of membership on behalf of a number of employees. 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 in excess of that required for certification without recourse to a representation vote.
There was also filed in this matter, in timely fashion, a written statement (hereinafter referred to as the "petition") expressing opposition to the applicant trade union in the following terms:
"We the undersigned wish to withdraw our application to have the United Steel Workers act as our Bargaining Unit with Lyman Tube Div of Jannock Tube".
As in indicated above, in the absence of the petition, which was signed by ten persons, the applicant would be entitled to be certified without a representation vote. However, the overlap between the persons who signed membership cards in the applicant and the persons who signed the petition 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 petition. Accordingly, the Board conducted its usual inquiry into the origination and circulation of the petition.
The petition was prepared by Roy W. Rogers who is employed by the respondent as a truck driver. Mr. Rogers testified that he decided to prepare a petition after reading the "green sheet" (Form 5 Notice to Employees of Application for Certification and of Hearing). He drafted the petition with the assistance of his wife and personally witnessed seven of the ten signatures on it, namely numbers 1, 2, 3, 4, 8, 9 and 10. After the first four persons had signed it, Mr. Rogers gave the petition to number 5 at approximately 7:00 p.m. on October 6, 1980. Number 5 returned the petition to Mr. Rogers approximately two hours later with three additional signatures on it – numbers 5, 6 and 7. One of these signatures, namely, number 7, was that of a foreman.
As indicated earlier in this decision, foremen are excluded from the bargaining unit agreed upon by the parties. This exclusion is consistent with the standard practice of this Board concerning bargaining units of this type, by which persons classified as foremen are generally excluded from the unit as the lowest level of management. In the absence of evidence to the contrary, the Board presumes that the parties in the instant case agreed that foremen should be excluded from the bargaining unit because they exercise managerial functions within the meaning of section 1(3)(b) of the Act.
There was no evidence before the Board concerning the circumstances under which the petition was signed by numbers 5, 6 and 7; Mr. Rogers was the only person who testified concerning the circulation of the petition and he was not present when those three persons signed it. After the petition was returned to Mr. Rogers, he obtained the three remaining signatures (numbers 8, 9 and 10) and returned the petition to number 5 for delivery to the Board.
The legal basis and effect of petitions and the Board's practice concerning such documents were explained as follows in Peacock Lumber Limited, [1979] OLRB Rep. May 423:
"7. Neither 'statements of desire' nor 'petitions' are mentioned in 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 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:
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 requirements, the union continues to enjoy the support of its members.
The 'change of heart' will often take the form of a petition or statement of desire indicating that the signatures 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.
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.
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:
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 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 or not to sign it. (See Morgan Adhesives of Canada Ltd. [1975] OLRB Rep. Nov. 813 and the cases cited therein.)"
If the custody of a petition cannot be substantially documented by direct evidence throughout its period of circulation, the Board will not attach any weight to it (see Groves Park Lodge, [1979] OLRB Rep. Sept. 871; J. A. K. Electrical Contractors Limited, [1977] OLRB Rep. May 275; Formosa Spring Brewery, [1974] OLRB Rep. Sept. 604 and Vered and Harvey Company Limited, [1971] OLRB Rep. Nov. 736).
It is clear from his candid and credible testimony that Mr. Rogers sincerely attempted to circulate the petition in such a manner that each employee would feel free to sign or refrain from signing it. However, having regard to the fact that the petition clearly fell into the hands of a foreman during the period of its circulation in which it was out of Mr. Rogers' hands and concerning which no evidence was adduced, the Board, in accordance with the jurisprudence set forth above, is not prepared to attach any weight to the petition.
This Board generally rejects the signature of any foreman or other member of management which appears on a petition, together with all signatures that follow it (see Hoffman Concrete Products Ltd., [1976] OLRB Rep. Feb. 35; Universal Cooler, [1967] OLRB Rep. Sept. 546; Rivard Cleaners Ltd., [1966] OLRB Rep. April 19; Sudbury Public School Board, [1963] OLRB Rep. Oct. 357 and Pocock Dairy Ltd., [1961] OLRB Rep. Mar. 443). Accordingly, quite apart from the gap in the evidence concerning the circulation of the petition, the Board would in any event disregard signatures 7, 8, 9 and 10. Without those signatures, there is not sufficient overlap between the remaining signatures on the petition and the persons who signed membership cards to cause the Board to doubt that the members of the applicant continue to support its certification. Thus, even if the lack of evidence concerning the period of circulation of the petition during which signatures 5, 6 and 7 were obtained did not cause the Board to attach no weight to the petition, the Board would still decline to order a representation vote in the exercise of its discretion under section 7(2) in the circumstances of this case.
The burden of proving that, on the balance of probabilities, the petition represents a voluntary statement of desire on the part of the employees lies upon the objectors (see Leamington Vegetables Growers Co-Operative Limited, [1974] OLRB Rep. June 402). Having regard to all the evidence before it and the submissions of the parties, the Board finds that the objectors have not discharged that burden and that the petition in the present case does not cast doubt upon the continued support of the members of the applicant for it certification.
A certificate will issue to the applicant.