[1980] OLRB Rep. March 327
2107-79-R Teamsters Union Local 938, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. J. & A. Cartage Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Paul Brennan and Al LeFort for the applicant; D. I. Wakely and V. D'Aliesio for the respondent; Manuel Zeballos for the objectors.
DECISION OF THE BOARD; March 20,1980
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
There were filed in this matter, in timely fashion, ten identical written statements expressing opposition to the applicant trade union in the following terms:
"February 19, 1980
RE: UNION
TO WHOM IT MAY CONCERN:
I, , an employee of J. & A. Cartage Limited, at 95 Rivalda Road, Weston, Ontario, do not want to have a Union come into J. & A. Cartage. I am happy with the working conditions as they are now, and I feel that I would not gain anything from a Union in our Company.
Yours truly"
In the absence of these statements of desire, the applicant is in a certifiable position. The overlap between the signatories to membership cards in the applicant and signatories to the statements of desire is sufficient, however, that it would normally cause the Board to direct a representation vote, provided the Board were satisfied of the voluntariness of the statements. The Board therefore conducted its usual inquiry into the origination and circulation of these statements of desire.
The "author" of the statements of desire which the Board has before it was an employee by the name of Manuel Zeballos. It was obvious from his evidence, however, that the real source of the statements was an employee named Eduardo Dalecio. Mr. Dalecio has been with the company for approximately four years, and, like most of the employees, is generally employed as a truck driver. He does, however, have the additional responsibility of handling the telephone and dispatching when the owner is absent (as does another driver by the name of Albert Hanna, who appeared at the hearing as the advisor for the applicant trade union). The evidence of the employees called to give evidence for both sides establishes that Mr. Dalecio is not generally viewed as having any particular authority apart from the rest of the drivers. He was, at one time, the holder of some shares in the company, as security for a loan which he and another employee made to the owner. He testified that the loan has since been repaid, and he no longer holds the shares.
Mr. Dalecio's evidence was that the origination of the petitions against the applicant was his own idea, on the ground that he felt an operation as small as J. & A. Cartage did not need a union. He prepared a statement in the same form as that now presently before the Board, but with one additional sentence which read:
"I am treated fair in all respects by my employer, Vince D'Aliesio, and I want things to remain as they are at present."
He had it typed and copied during business hours by the owner's secretary, using company stationery. He testified that neither the owner, nor the owner's wife, who works in the office, were present at the time. There are no other supervisors in the company. He then, according to his evidence, "approached everyone", and obtained a number of signed statements. After he had done that, however, "rumours" surfaced concerning some of the statements he had made during circulation of the petitions, together with his relationship with the owner. There was substantial dispute in the evidence with regard to the statements in question, which Mr. Dalecio referred to before the Board as "misunderstandings". The applicant's evidence indicated Mr. Dalecio to have said: "What we are offering is OHIP and a dental plan"; Mr. Dalecio, supported by certain evidence called by the petitioners, testified that he was merely trying to find a compromise, and that what he said was that the drivers could accomplish their purposes without a union by getting together on their own, and that if they talked to management on that basis they might be able to get things like OHIP and a dental plan. He further testified that he got the idea about a dental plan from having seen a booklet on dental plans lying on the owner's desk, while he was passing through the owner's office on his way out to the yard. He assumed from that that the owner was considering a dental plan. The evidence established that two employees had been laid off at this time. The applicant's evidence indicated that Mr. Dalecio at the time of circulating the petitions also stated that if the union came in, there would be more layoffs. Mr. Dalecio testified that he only referred to the layoffs as indicating the economic state of the company. Whatever be the basis for these "misunderstandings", as Mr. Dalecio called them, he indicated that because of the talk about him, he decided to tear up the petitions which he had gathered.
The next day, the petitions presently before the Board were prepred by Mr. Zeballos, another truck driver. He testified that he did not like the wording on Mr. Dalecio's petition, and accordingly decided to draft his own. As indicated, his own was in the same form as Mr. Dalecio's, but with the deletion of the last sentence. Like Mr. Dalecio, he had the petition typed and copied by the owner's secretary during business hours, using company stationery. There was again no one present from management. Mr. Zeballos then proceeded over the next two days, mostly in the yard while the trucks were being loaded in the morning, to obtain the signatures of other employees. Mr. Zeballos testified that at this time the owner was in the dispatch office, as usual, but he could not tell whether the owner could see him talking to the other drivers or not. When Mr. Zeballos completed gathering the petitions, he delivered them to Mr. Dalecio. The only explanation given for this was that Mr. Zeballos himself did not have the time to mail the petitions. The petitions were thus delivered by Mr. Zeballos to Mr. Dalecio, together with a list of the names and addresses of the employees of the company, on Friday, February 22, and it was Mr. Dalecio who paid the cost of registration. The terminal date fixed by the Registrar for the mailing of such material was Tuesday, February 26.
The evidence also establishes that on February the 18th, the day before the application for certification was posted on the premises, Mr. Matthew Young and Mr. Albert Hanna, truck drivers for the company, were laid off. Mr. Young claims that in a discussion with the owner in the dispatch office at approximately 7 o'clock that morning, the owner Mr. Vince D'Aliesio (no relation to Eduardo Dalecio) told him that if the union got in, he would close the doors, and also indicated, indirectly, that he knew that both Mr. Young and Mr. Hanna were involved. Mr. D'Aliesio denied these allegations, and further testified that the first he heard of the union's application was when a lady from the Labour Board phoned him at 10 o'clock that morning, to inquire as to the correct address of the company for mailing purposes. He further testifed that the choice of Mr. Young and Mr. Hanna had absolutely nothing to do with their union activity, but rather was based on his assessment of whom amongst his employees could best get along without the week's pay. In response to counsel for the applicant's question as to how he was in a position to make such an assessment of his various employees, Mr. D'Aliesio indicated that he could tell according to which drivers had come to him to borrow money. He further testified that he selected Mr. Hanna because of a prior statement by Mr. Hanna to the effect that employees should be laid off, but that he himself would never be laid off because he had been with the company too long.
The company submitted statistical evidence to substantiate the downturn in business during February, and this downtown was confirmed by all of the witnesses testifying before the Board, with the exception of Mr. Young. The company puts forward this downturn as the explanation for its layoff of Mr. Young and Mr. Hanna. However, in answer to the question as to why the layoffs specifically took place on February 18th, Mr. D'Aliesio could offer only a vague explanation about having been waiting for manufacturers to finish production runs (presumably with the hope that business would then pick up).
The only issue before the Board is the voluntariness of the petitions. In the light of all the circumstances, the Board finds Mr. D'Aliesio's explanation of the layoffs of Mr. Young and Mr. Hanna to be difficult, at best, to believe, and accordingly prefers the evidence of Mr. Young. The Board finds the layoffs of Mr. Young and Mr. Hanna were, on the balance of probabilities, intended to convey to the other employees the consequences of support for the applicant. More importantly, the Board finds that these layoffs would have been perceived in that way by the other employees. The precise words used by Mr. Dalecio respecting layoffs in the circulation of the first petition are therefore not critical. Reference to layoffs at that point in time would, in itself, be sufficient to underscore the message. With respect to the disputed evidence over the provision of OHIP and a dental plan, the Board finds Mr. Riggs to be the most credible of the witnesses, and accordingly finds that Mr. Dalecio would have been reasonably perceived by the majority of employees as speaking for management, having clearly no authority to "offer" anything on his own.
The first set of petitions, therefore, was clearly tainted. Did the second set of petitions escape the taint? We find it did not. The mere proximity in time to the threats of layoff and promise of benefits which the Board finds to have been communicated to employees would itself be sufficient to invalidate the second petition. But in addition to that, the second petition is scarcely unrelated to the first. It was circulated the very day following the demise of the first, in a form which employees would have no difficulty in recognizing as virtually a copy of the one promoted by Mr. Dalecio. The second set of petitions, once duly gathered, were then delivered to Mr. Dalecio. While not a matter necessarily known to the other employees of the company, this final point is nonetheless of assistance to the Board in maintaining in perspective the relationship between Mr. Zeballos and Mr. Dalecio in their respective roles, insofar as the petitions were concerned.
Because of the influences brought to bear on employees at the time the petitions filed with the Board were circulated, the Board is not satisfied that these petitions represent a voluntary statement of desire on the part of the employees who signed them, and further, that the said statements do not cast doubt on the evidence of membership filed in support of this application.
A certificate will issue to the applicant.