[1980] OLRB Rep. November 1691
1220-80-R Laundry and Linen Drivers and Industrial Workers Union, Local 847, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Siegfried Krieser Industries Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members E. J. Brady and H. Simon.
APPEARANCES: K. Petryshen, V. Knap and A. Bryan, for the applicant; R. D. Perkins,
E. Martenfeld and F. Skurka, for the respondent; and L. D'Oliveira and P. Mosychuk, for the objectors.
DECISION OF THE BOARD; November 24, 1980
This is an application for certification.
Having regard to the agreement of the parties, the Board finds pursuant to section 6(1) of the Act, that the following two bargaining units are units of employees appropriate for collective bargaining:
Bargaining Unit #1
All employees of the respondent at its plant at 41 Colville Road in the Municipality of Metropolitan Toronto known as Metal Bending & Furniture Company, save and except foremen, persons above the rank, office and sales staff, students employed during the school vacation period, and persons regularly employed for not more than twenty-four hours per week.
Bargaining Unit #2
All employees of the respondent at its plant complex on Fenmar Drive in the Municipality of Metropolitan Toronto, save and except foremen, persons above that rank, office and sales staff, students employed during the school vacation period, and persons regularly employed for not more than twenty-four hours per week.
For the purposes of clarity, the Board notes that the Fenmar complex includes buildings at 38 Fenmar, 39 Fenmar, and 60 Signet Road (175 Fenmar).
In support of this application for certification, the trade union filed documentary evidence of membership on behalf of a number of employees employed in bargaining unit #1 and bargaining unit #2. The documentary evidence took the form of membership cards which include a combination application for membership and an attached receipt. These cards are signed by the employees, and the receipts are countersigned and indicate that a payment of one dollar has been made within the six month period immediately preceding the terminal date for this application. The documentary evidence is supported by a properly completed Form 8 statutory declaration and demonstrates that in both bargaining unit #1 and bargaining unit #2 the union has a level of membership support in excess of that required for certification without recourse to a representation vote. Having regard, therefore, to the statutory definition of "member", and the statutory prescriptions concerning membership, as well as the Board's power to prescribe the form of such evidence, the Board is satisfied, on the basis of the material before it, that more than fifty-five per cent of the employees of the respondent in bargaining unit #1 at the tine the application was made, were members of the applicant on September 26, 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.
There was also filed with the Board two statements of desire, or "petitions", signed by employees and indicating that they wished to oppose the certification of the applicant. These statements included the names of certain individuals who had previously signed membership cards, had paid $1.00 in respect of membership fees, and were, therefore, "members" of the union within the meaning of section 1(1)(j) of the Act. These "members" had had a purported change of heart, and now allegedly no longer wished to support the applicant's certification. However, the number of such individuals in bargaining unit #1 was insufficient to affect the applicant's right to certification for that unit. Accordingly, the Board is satisfied that a certificate should issue to the applicant in respect of bargaining unit #1. In bargaining unit #2, however, it was apparent that if all of the union's members who signed the petition had had a voluntary change of heart, the Board would exercise its discretion to order a representation vote (although, it might be noted, that if any of those individuals signed involuntarily, the union's unequivocal membership support entitle it to certification without recourse to a representation vote).
Statements of desire, or "petitions", are not regulated by the Act as directly, or precisely, as union membership evidence. There is no statutory definition equivalent to section nor is there any requirement for a monetary payment, or a confirmatory statutory declaration similar to Form 8. However, the existence of statements of desire appears to be contemplated by section 92(2)(j) of the Act and Rule 48 of the Rules of Practice and in any event, 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 in all respects with Rule 48, and contains the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt that the union's members continue to support its certification. The Board must be satisfied however, that when these members signed the petition evidencing an apparent change of heart, they were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their 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. Often, as in the present case, a petition will be signed by employees who have indicated their support for the trade union only a short time before; and 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. Frequently, such petitions are openly circulated on the employer's premises during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with the employer. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign a petition because of employer conduct suggesting that his continued support for the union will result in loss of his job or other adverse employment consequences. In neither case can one regard his signing the petition as truly voluntary for in both cases, it results from a perceived threat to his job security. It is for this reason that the Board undertakes the inquiry 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 trade union is voluntary. In Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board discussed the nature of this inquiry in a long passage to which we might usefully refer:
"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, represents a voluntary change of heart. The Board recognizes that 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 matter 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-employees 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. No. 813 and the cases cited therein.)"
The petition document at the Fenmar location was prepared by Peter Mosyschuk and circulated by Mr. Mosychuk and Mr. Einesman on company premises during working hours. Neither Mr. Mosychuk nor Mr. Einesman exercise managerial functions, although Mr. Einesman(who has been employed by the respondent for sixteen years) told the Board that a number of employees did not wish to talk to him about the union because they thought he would go "straight to the boss to tell on them". This perceived association and identity of interest with management may also be relevant in the case of William Nickel — another senior employee who signed and was associated with the petition. The union argued that Mr. Nickel exercises managerial functions and two witnesses, John Carvallo and Carlo Pinto testified that they regarded him as a supervisor. We are satisfied however that Mr. Nickel does not exercise managerial functions and could not reasonably have been regarded as being a member of management. On the other hand, there is no doubt that these old and valued employees had a special relationship with management (as is not unusual in most small businesses) and that more junior employees might reasonably be concerned about openly expressing prounion sentiments in their presence. While there was no evidence that these employees enjoyed special privileges, it might be noted that Mr. Einesman on Mr. Nickel's suggestion and without consulting his foreman or asking permission was able to take a day off work to attend the Board hearing. We wish to make it clear however that there is no evidence of actual management involvement in the origination preparation or circulation of the petition nor is there any evidence that the respondent actively assisted the petitioners or sought to use this vehicle as a means of undermining the union's position. There were however a series of managerial actions which in our view bear upon the voluntariness of the petition.
On September 17, Edward Martenfeld, the plant general manager, held an impromptu” meeting attended by most of the employees in the office of Bruno Prescowitz another management official. Martenfeld told the Board that he had heard rumors of the union organizing campaign, was profoundly disturbed, and felt that it was necessary to speak to the employees. Martenfeld was concerned, disappointed, and apprehensive about the potential impact on the company if the employees chose a trade union to represent them. He had no previous experience with trade unions, regarded a union as a negative and destructive force, and felt that it was unnecessary in the context of his business. All of these views were conveyed to the employees.
The company had been experiencing some financial difficulties but, for the most part, had been able to avoid prolonged lay-offs. This business situation was reviewed by Martenfeld who prefaced his remarks by indicating that if the employees wanted a trade union he would be prepared to work with it. However, he went on to say that if the employees opted to support a trade union, it would be a "different ball game". The way a union worked, he said, people would have to be laid off. The clear impression left with the employees (and this was confirmed by all of the employees who gave evidence including the petitioners) was that if the employees opted for a trade union there would be lay-offs. Rumors also began to circulate concerning a possible plant closing if the union's certification application were successful. Nickel told John Carvallo that if a trade union came in the boss would "lock the door". Even if Martenfeld indicated that he was prepared to work with the union, and honestly believed that a formal job classification system might impair the company's ability to retain employees, there is no doubt that the employees were told that continued support for the trade union would prejudice their job security.
The situation was exacerbated by a number of press clippings which Mr. Martenfeld posted on the board used by the company for posting notices to employees. Mr. Martenfeld explained that, after learning of the organizing campaign, he cut out and posted any news items which reflected adversely on unions or might bear upon the employees' situation if they chose to support the union. Pertinent paragraphs were apparently underlined. Some of these newspaper stories and letters to the editor merely express opposition to trade unions linking them with "featherbedding", lethargy, scandal, corruption, crime, radicalism, and in one case treason. Others however are more directly linked to Martenfeld's concerns and those of the employees. One headline reads: "ONE HUNDRED LOSE JOBS AS TORONTO PLANT CLOSED". Another described the circumstances of a two month lockout. A third noted that Massey Ferguson was in the midst of a three-month shutdown and had laid off hundreds of employees in Brantford and Toronto. A letter which was entitled "better low than no pay" suggested that wage increases result in fewer jobs and that it was better to have a smaller income than no income at all. Since these clippings clearly emanated from management and followed Martenfeld's speech linking trade union representation with lay-offs, it is not surprising that employees were concerned that continued support for the trade union would prejudice their job security. Continued support for the union would threaten their jobs; and as we have already pointed out, all of the employees who gave evidence confirmed that this was the company's message.
Can the Board in all of these circumstances be satisfied that when the employees, who had previously signed membership cards, signed the statement of desire, they were expressing a genuine and voluntary change of heart? Or were they motivated by a concern for their job security, or a fear that their failure to signify their opposition would be communicated to their employer and might result in adverse employment consequences? In our view, the latter is more likely. Having regard to the totality of the evidence, we are not satisfied that the petition represents the voluntary wishes of the employees (and in particular, those employees who had already signed membership cards), and we are not prepared to give it any weight or to exercise our discretion to order a representation vote. The Board, therefore, is satisfied on the basis of all of the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining unit #2 were members of the applicant on September 2, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)6) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant in respect of bargaining unit 2.