[1980] OLRB Rep. September 1275
0730-80-R United Food and Commercial Workers International Union, Applicant, v. Beatrice International (Canada) Ltd. Malcolm Condensing Company Division, Respondent, v. Group of Employees, Objectors
BEFORE: D. E. Franks, Vice-Chairman, and Board Members M. J. Fenwick and E. C. Went.
APPEARANCES: Maurice A. Green andLes Dowlingfor the applicant; Christopher Eames,
J. Graham Malcolm and D. Ross Ferguson for the respondent; John Wheat and Tim S. Nesbitt for the objectors.
DECISION OF VICE-CHAIRMAN, D. E. FRANKS, AND BOARD MEMBER M. J. FEN WICK; September 11, 1980
- There was filed in this application for certification a typewritten statement of desire to make representations dated July 10, 1980. The document reads in part:
"We, the undersigned, employees of Malcolm Condensing Company, St. George, Ontario on this date are submitting this letter in accordance with sections 3, 4 and 5 of the Labour Relations Act Form 5.
We oppose the application made by the United Food and Commercial Workers International Union for certification of a union for the said plant. We wish to explain our opposition at the hearing of July 25, 1980."
There follows some thirty-seven signatures on a total of seven pages. At the hearing in this matter, the Board heard the evidence of Mr. John Wheat and Mr. Tim Nesbitt concerning the origination and preparation and circulation of the petition.
The petition was prepared by Mr. Nesbitt after some consultation with Mr. Wheat. Mr. Nesbitt wrote out the wording of the petition and the document was typed by his wife. The petition appears from its inception until the time it was posted to the Labour Relations Board to have been in the possession of Mr. Nesbitt at all times. Both Nesbitt and Wheat are truck drivers for the respondent employer. Wheat apparently drives a tractor trailer on trips mostly to Toronto, although to other locations as well. Nesbitt, on the other hand, makes local trips in the vicinity of St. George. The petition was apparently prepared by Nesbitt and his wife on the evening of July 9th. On Thursday, July 10th, Nesbitt and Wheat met after Wheat returned from a trip to Toronto at about noon and signed the petition. The bulk of the signatures on the petition were signed during the afternoon break in the lunchroom at the employer's premises. Both Nesbitt and Wheat were there and both talked to various employees as they came into the lunchroom.
The evidence of Wheat is that shortly after he and Nesbitt had signed the petition, he went to the office and informed Mr. Malcolm and Mr. Ferguson, the managers of the respondent, that a petition had been prepared and was about to be circulated. He was informed that he could not do this in the plant; in turn Mr. Wheat asked if they could use the lunch room and approval to use the lunchroom was given by the respondent employer. Thus, when Nesbitt and Wheat used the lunchroom as a place for signing up employees on their petition, they did so with the knowledge and consent of the respondent employer.
This in fact gave rise to a very curious incident. Nesbitt and Wheat apparently left the employer's premises sometime between 3:30 and 4:00 on the afternoon of Thursday, July 10th. When Nesbitt returned at about 5:00 p.m. to pick up his wife, she asked him to return to the plant with the petition, since there were a number of women who wanted to sign it and that they were waiting in the lunchroom. Nesbitt went home, then collected Wheat and they returned to the plant to the lunchroom. The evidence is clear that while Nesbitt and Wheat were meeting with the women in the lunchroom, a foreman came into the lunchroom to get something from one of the lockers in that area whereupon he was told by Wheat that there was a meeting going on and asked to leave. He apparently left without questioning these instructions.
The remaining signatures on the petition were signed up around midnight that evening. The evidence is that Wheat went to the plant and waited for Nesbitt in the supervisor s office and then they signed up the few employees who were there in the evening.
In cases where employees petition the Board objecting to an application for certification, the Board is careful to determine whether the petition represents the true wishes of the employees or whether the employer has interfered with the wishes of the employees. If the Board finds that the employer has played any part in the petition process, the Board will not allow such a petition to stand. In the present circumstances, it is clear that the employer knew the petition was being circulated and indeed gave permission to Wheat and Nesbitt to use the lunchroom. While mere knowledge of a petition is not sufficient to infer management interference in the wishes of the employees, the permission to use premises raises a serious problem. If the use of the premises by the employees circulating the petition is such that an employee is likely to conclude that the employer has agreed to such use, then that is a clear indication of employer support of the petition. In the present case, the mere fact that Wheat and Nesbitt, who are truck drivers, spent a large portion of the afternoon in the lunchroom with the petition, is surely enough to raise a suspicion on the part of the average employee that the employer was aware of what they were doing. Any doubt as to that suspicion was surely removed when Mr. Wheat asked the foreman to leave the lunchroom, and he did. It is clear that the foreman was prepared to co-operate with the activities of Wheat and Nesbitt. In such circumstances, we are prepared to find that the employer tacitly but quite openly indicated support for the petition such that we cannot find that it represents the true wishes of the employees. The Board, therefore, will give no weight to the petition in this case.
A certificate will issue to the applicant.
DISSENT OF BOARD MEMBER E. C. WENT:
I dissent.
In my opinion the petition is valid and the petitioners have met the onus imposed on them by the Board to show that the signatures represent a free and voluntary expression of their wishes in this matter.
While it is true that the Company was aware of the circulation of the petition, there is no evidence that the petition was company-inspired. Indeed, the Company's response to information that a petition was being circulated was limited to telling the petitioners not to obtain signatures during working hours and to be sure to tell the truth when they came before the Board. This can hardly be construed as company support or involvement.
The petitioners, Wheat and Nesbitt, felt that they had management’s acquiescence to use the lunchroom and in fact, obtained most of the signatures in that location. However, these signatures were not obtained in the presence of any management person and there is no reason to conclude that the signatories would believe that there was company involvement simply because the petition was available for signing in the lunchroom.
On one occasion a foreman did walk into the lunchroom to obtain something from a locker in that area. The petitioners, Nesbitt and Wheat, were discussing the petition with a few employees in the lunchroom at the time. The foreman was asked to leave and he did. There was no discussion about the petition in the foreman's presence. To suggest that the fact that a foreman, in the normal course of his duties, happened to go into the lunchroom where a small group of employees were holding a meeting, was asked to leave and did so, is sufficient evidence to invalidate the whole petition is, in my opinion, completely unjustified. In any event, only 4 of the 37 signatures were obtained at this meeting, 29 signatures having been obtained earlier and 3 later. While I do not agree that there was management's support in this case, if we assume there was it seems to me that it should apply only to the 4 signatures obtained at the meeting which was interrupted by the foreman and that the balance of the petition should stand.
To deny the employees a vote under these circumstances is, in my opinion, not justified by the evidence and will prove injurious to good labour relations at this plant.