[1980] OLRB Rep. July 1131
0273-80-R International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, (U.A.W.), Applicant, v. Willow Manufacturing Company Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members T. G. Armstrong and M. J. Fenwick.
APPEARANCES: H. Carl Anderson, and Howard Powers for the applicant; J. Robert Howard, Dennis Wild and J. Milne for the respondent: Madeline Trahan for the objectors.
DECISION OF THE BOARD; June 26, 1980
This is an application for certification.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Metropolitan Toronto, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
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 May 13th, 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.
A statement of desire was filed with the Board in opposition to the union's application. Because of the extent of the overlap between persons who signed both a union membership card and the petition in opposition to the application, the Board would exercise its discretion under section 7(2) of the Act and order the taking of a representation vote if satisfied that the statement cf desire represents the voluntary expression of the views of its signatories.
Madeline Trahan gave evidence concerning the origination and circulation of the statement of desire. Ms. Trahan has been employed by the respondent as a shipper for fourteen years. The respondent manufactures screw machine products. The shipping department is at one end ~f its one floor plant and the management offices are at the other. There is a foreman's office just outside the management offices and at least one foreman's office in the middle section. Ms. Trahan testified that in the regular course of her shipping duties, she spends a considerable amount of time in the front office and in discussions with members of management.
The evidence reveals that a five person Committee against the union was formed the day after the posting of the Board's Form S Notice to Employees which gave employees notice of the application for certification and an indication of the procedure to be followed by those wishing to object to the union's application.
Ms. Trahan testified that "the whole plant wanted to make a petition and didn't know how so [she] volunteered." The evidence indicates that the union's application for certification and the opposing petition were widely discussed in the days immediately following the posting of the Form 5 Notice to Employees.
On May 8th, the Committee met at Ms. Trahan's house and drew up the petition. On May 9th Ms. Trahan brought the petition to work. She kept it turned over on the corner of her desk and people came to sign it throughout the day from approximately 8:30 a.m. until quitting time at 2:00 p.m. Ms. Trahan testified that it was made known around the shop that if people wanted to sign the petition against the union it was available at her desk. In an attempt to avoid a suspicious line up at Ms. Trahan's desk, Committee members kept an eye on her desk to indicate to other employees when they could leave to sign the petition. The evidence indicates that people in the middle section could see her desk while those in the front of the shop had to rely on either a relay nod or some feeling of when the way was clear.
Mr. Trahan stated that when people came to her desk, she handed them a pen and turned the petition over, usually without talking to them. Some people who signed did not read the petition and some employees were unable to speak English. Ms. Trahan stated, for example, that Angela Freire, a fellow employee, does not speak English. Whether or not she can read English was not known to Ms. Trahan. When she came to sign the petition Ms. Trahan gave her the petition to sign but did not say anything to her. It is unclear on the evidence, therefore, whether or not she knew what she was signing. The Board has no evidence as to what if anything, any other Committee person told her regarding the contents of the petition.
At one point during the course of the day some employees who had signed union cards approached Ms. Trahan to sign the petition. For some reason, which never became clear to the Board. Ms. Trahan decided to make a separate petition for those who had previously signed union cards. She asked these employees to come back after she had prepared a separate document for them. To the preamble of the first petition she added the words, "We were told it was for more money only." Ms. Trahan took time away from her work to prepare the second petition and then sought advice from another employee as to whether, in his opinion, the new wording was appropriate for those who had previously signed union cards. Although Ms. Trahan stated that she did not ask people who came to her desk whether or not they had previously signed for the union, the evidence before the Board readily establishes that, thereafter, one way or another, it was apparent to people who signed the petition that one document was for people who had previously signed membership cards and one was for those who had not.
Numerous witnesses were called on behalf of the union. Ms. Edith Gamboa, an employee who works on a screw machine, testified that one of the Committee members opposing the union, Ms. May Griffiths, told her that she would have to sign the petition or she would lose her job. Ms. Griffith denied the accuracy of the evidence. Ms. Gamboa further testified that Ms. Trahan asked her to speak to those of her friends who could not speak English to tell them that they might lose their jobs if the union came in. This evidence was not denied by Ms. Trahan. Laura Quintal, another employee, also testified that stories were afloat that the plant would close down if the union was successful in its application for certification. On the basis of the evidence, the Board is satisfied that the rumours that the union could precipitate a plant shut down were circulating during the signing of the petition.
There is no direct evidence by which the Board would conclude that these rumours were initiated by management. Ms. Quintal, however, did testify, without contradiction, that Mr. Bill Darrah, who is both the son of Mr. Walter Darrah, a foreman, and the nephew of the owner of the plant, told her that the plant would shut down if the union came in and that the petition was with Ms. Trahan. The extent of Bill Darrah's involvement is not entirely clear. Although he was not a member of the Committee, Mr. Ron Schroeder, an employee in the screw machine department, stated that he saw Bill Darrah take a person to Ms. Trahan's desk and that that individual then signed the petition. In her testimony Ms. Trahan denied that Bill Darrah brought anyone to sign the petition. She acknowledged, though, that he might have sent people to her desk. The Board must, on the evidence, conclude than an employee closely related to management was seen as active on behalf of the petition.
Mr. Schroeder testified without contradiction that sometime after the petition had been sent to the Board, Alfred Hardsmen, the foreman of the automatic machines, approached him saying "I didn't see your name on the petition". He further testified that Mr. Hardsmen went on to say that he had looked for two names on the petition, Schroeder's and another's he would not reveal, and that he stated that he hadn't found either one of them.
The testimony reveals that after the petition had been sent to the Board, Ms. Trahan played an instrumental role in having Laura Quintal transferred to another position. Ms. Trahan stated that she saw union supporters speaking with Ms. Quintal in what was, in her opinion, a harassing manner. Ms. Quintal, however, described the encounter as nothing more than a conversation. Whatever the actual nature of the exchange, Ms. Trahan stated that she felt the union supporters were causing Ms. Quintal to fall behind in filling her job orders and therefore asked one of the foremen to have her transferred to another location. The evidence establishes that soon thereafter Walter Darrah, the foreman of the screw machines, told Ms. Quintal that she was being moved.
Persons seeking to rely on a petition in opposition to an application for certification bear the burden of establishing that the statement of desire indicating a change of heart is a voluntary expression. The Board has long recognized the sensitive nature of the employer/employee relationship in assessing the voluntariness of a petition which carries signatures of persons who shortly before supported the union. (See Pigott Motors (1961) Ltd.. 63 CLLC ¶116.264). Due to the suddenness of the change in sentiment, coupled with the responsive nature of the employer/employee relationship. the Board is watchful for indications of managerial involvement in assessing the voluntariness of a petition. In circumstances where management has been actively involved in the origination, preparation or circulation of the petition, the Board will generally not accord the document any weight. Additionally, where evidence indicate' that an employee might reasonably suspect that management supported the petition. tacitly or otherwise, thus raising concerns that management might become aware of who had and ~ho had not signed a statement of desire in opposition to the union, The Board, similarly, will normally dismiss the petition. (See Morgan Adhesives of Canada Limited, [1975] OLRB Rep. Nov.81 3; Dad's Cookies Ltd., [1976] OLRB Rep. Sept. 545; Radio Shack [1978] OLRB Rep. Nov. 1043 and the cases cited therein; Peacock Lumber Ltd., [1979] OLRB Rep. May 423, Terminal Hotel, [1979] OLRB Rep. June 580 and Groves Park Lodge. [1980] OLRB Rep. Feb. 235).
In assessing the voluntariness of a petition and ascertaining the reasonable perception of employees who signed the document, the Board in both Radio Shack and Peacock stressed the importance of the general atmosphere in which a petition is signed.
In this case the petition was signed on the company premises, at a work station, throughout the working day. These factors standing alone do not automatically indicate that the petition is not a voluntary expression of employee opinion. Their impact, however, must be accounted or in evaluating the general atmosphere in the plant at the time the petition was signed and the probable perception of employees signing the document.
In 5ome apparent effort to avoid detection by management. the Committee sought to control the flow of employees to Ms. Trahan's desk. In so doing they formed a chain of communication between and within departments which, in the Board's opinion, could well have attracted management’s attention. Both foremen's offices and the main office are directly adjacent to the work areas from which employees went to sign the petition. Although Ms. Trahan testified that it is not unusual for employees, from time to time, to come to her desk to use the telephone, there is no evidence to suggest that a procession of at least twenty-eight people to Ms. Trahan's desk in one six hour period, sometimes in small groups, was anything but highly unusual and recognizable as such by employees. In these circumstances, the Board concludes that employees, would, with reason, have become concerned that management either knew about tie petition and approved of it, or would soon find out about it, as they in fact did.
Furthermore, the Board cannot ignore the potential impact of the rumours that were going around the plant that if the union got in, the plant could close down. Although the Board is satisfied that there was no intention on the part of management to influence the application for certification when it laid off six employees hours after posting the Form 5 Notice to Employees, the Board concludes that the fact of the lay-off, during which Ms. Trahan was called in by management as an observer, may well have lent added credibility to the rumours that the plant might shut down if the union got in. Furthermore, there is uncontradicted evidence that Bill Darrah, a close relative of management, was himself circulating the rumour.
The Board does not seek to circumscribe the freedom of expression of an employee by virtue of the position of his relatives. In all of the circumstances of this case, however, the Board must recognize that an employee who heard the rumour of a possible plant shut down from Bill Darrah, as did Ms. Quintal, would have reasonably suspected that he was privy to management information.
Another circumstance which causes the Board concern is the fact that Ms. Trahan created a separate petition for people who had previously signed union membership cards. Just as the Board never fully understood the purpose of this division, it may well be that persons who signed the petition didn't either. In the circumstances of this case, the Board is not satisfied that this unusual division, obviously communicated to employees, had a neutral impact on the signatories of the petition.
In this case the collection of the signatures on the petition was done not only on company premises, during working hours, but also openly, under the eyes of management, and over an extended period of time. Whether members of management in fact had their eyes open that day is not the question. The Board's concern is whether an employee, in the circumstances, would have had reason to believe that management either in fact knew about the petition and tacitly condoned it or would probably find out about it. In light of the foregoing evidence, the Board concludes that the circumstances were such that employees would reasonably suspect that management either knew or would come to know about the petition. The Board further concludes that employees would reasonably have been influenced by a fear that management would ultimately learn who had and who had not signed the petition against the union. The uncontradicted evidence in this case is that ultimately a foreman did in fact see the petition and search for two particular names on it. On a careful review of all the evidence, the Board must conclude that the circumstances surrounding the circulation of the petition in question would have raised very real concerns among the employees going to the heart of their employment relationship.
Finally, the lack of evidence to acquaint the Board with what was said about the petition to some employees who could not speak English prior to signing the petition leaves a significant gap in the evidence.
When all of the above circumstances are assessed together, the Board is not satisfied that the petition represents a voluntary expression of desire. The Board, therefore, does not view the petition as reliable evidence of a voluntary change of heart on the part of those employees who had, only a short time before, signed membership cards for the union. Accordingly, the board declines to exercise its discretion under section 7(2) of the Act and relies on the union's membership evidence as filed.
A certificate will issue.