Ontario Labour Relations Board
[1980] OLRB Rep. July 979
033-80-R Labourers' International Union of North America, Local 183, Applicant, v. I. M. Pastushak Ltd., Respondent, v. Group of Employees, Objectors.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: B. Fishbein and T. Spada for the applicant; Howard Isenberg, Stan Sherr and I. M. Pastushak for the respondent; Ken Hutchinson and Terry H. Wilson for the objectors.
DECISION OF IAN C. A. SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBER C. A. BALLENTINE; July 25, 1980
1This is an application for certification. Although originally filed as a construction industry application, at the hearing the parties agreed to have the Board treat the application as if it had been made pursuant to the regular provisions of the Act.
2We find that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
3Having regard to the agreement of the parties, we further find that all field employees of the respondent engaged in surveying operations in and out of Metropolitan Toronto, save and except party chiefs, those above the rank of party chief, draftmen, and sales, office and clerical staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
4On the date of the making of the application, the respondent employed two employees in the bargaining unit. The applicant filed evidence of membership with respect to both of these employees which indicates that each had applied to become a member of the union and in connection therewith had made a dollar payment to the union. Having regard to the definition of a union "member" set out in section l(i)(j) of the Act, we are satisfied 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 May23, 1980, the terminal date fixed for this application and the date which we determine, 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.
5There was filed a statement of desire in opposition to the application signed by Mr. K. Hutchinson a party chief outside of the bargaining unit and by Mr. T. Wilson, an employee in the bargaining unit. Although the applicant eventually agreed to exclude party chiefs from the bargaining unit, initially it proposed that they should be included in the unit and it filed membership evidence on behalf of Mr. Hutchinson.
6Prior to the respondent being formally notified of any application for certification, Mr. Hutchinson informed the respondent's owner, Mr. I. Pastushak that such an application would be forthcoming. Mr. Hutchinson subsequently advised Mr. Wilson that he had given this information to Mr. Pastushak. After the posting of the notice formally advising employees of the application, Mr. Hutchinson sought to discuss the possibility of a statement of desire with Mr. Pastushak. Mr. Pastushak, however, declined to discuss the matter, saying only that the men would have to make up their own minds. The statement of desire was drafted and signed by Mr. Wilson and Mr. Hutchinson on the afternoon of Friday, May 23, 1980. In cross-examination, Mr. Hutchinson indicated that during the morning of the same day he had advised Mr. Pastushak that such a statement would be filed. Mr. Hutchinson indicated that he had probably advised Mr. Wilson that he had given this information to Mr. Pastushak.
7Mr. Wilson and Mr. Hutchinson together agreed on the wording of the statement of desire on the afternoon of May 23rd. The statement was written out by Mr. Hutchinson, and he was the one who forwarded it to the Board.
8As party chief, Mr. Hutchinson is a working member of a survey crew who directs the operation of the crew. He makes reports on employee job performance to the respondent. He testified that with the possible exception of "extreme circumstances" he could not suspend an employee. Mr. Wilson generally does not work in Mr. Hutchinson's crew, but he was doing so at the relevant time. Mr. Wilson testified that he was not influenced into signing the statement by Mr. Hatchinson, but rather, signed because he had changed his mind about union representation.
9The Board has a practice of accepting statements of desire such as the one now before us and on the basis of such a statement exercising its discretion under section 7(2) of the Act to direct the taking of a representation vote, notwithstanding the fact that an applicant has filed evidence of membership on behalf of more than fifty-five per cent of the employees in the bargaining unit. Before it will exercise its discretion in this manner, however, the Board must be satisfied that the apparent "change of heart" on the part of those employees who applied to become members of the union and shortly thereafter signed a statement against the union, in fact, represented a truly voluntary change of heart. Having regard to the sensitive nature of the employer-employee relationship, the Board had consistently declined to direct a representation vote under circumstances where employees would have been reasonably concerned that any failure on their part to sign a statement of desire would be made known to management.
10In the instant case, the only bargaining unit employee to sign the statement was Mr. Wilson. Mr. Wilson testified that he did so because he no longer supported the union. However, Mr. Wilson signed the statement only after discussions with Mr. Hutchinson, the party chief. Mr. Hutchinson at the time was the person who directed Mr. Wilson in his duties, and was responsible for reporting on his job performance to senior members of management. Mr. Hutchinson informed Mr. Wilson of his approaches to Mr. Pastushak concerning the union, including his mentioning to Mr. Pastushak that a statement of desire would be filed. In light of Mr. Hutchinson's supervisory position, and his contacts with Mr. Pastushak concerning the union and the statement of desire, we are satisfied that Mr. Wilson would reasonably have concluded that his decision to sign or not to sign the statement against the union would become known to his employer. In these circumstances, and given the nature of the employee-employer relationship, we are unable to conclude that Mr. Wilson was not motivated by a concern as to how his actions might be viewed by management. In the result, we are not prepared to exercise our discretion to direct the taking of a representation vote.
11A certificate will issue to the applicant.
12The decision of Board Member H. J. F. Ade will be forthcoming at a later date.