Service Employees International Union, Local 183 AF. of L., C.I.O.. C.L.C. v. Westgate Nursing Home Inc.

[1981] OLRB Rep. June 810

2604-80-R Service Employees International Union, Local 183 AF. of L., C.I.O.. C.L.C., Applicant, v. Westgate Nursing Home Inc., Respondent, v. Group of Employees, Objectors.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.

APPEARANCES: C. M. Mitchell, P. Marier, J. Nicholls and D. Burshaw for the applicant; K. W. Kort 2nd R. Bond for the respondent; J. F. O'Brien for the objectors.

DECISION OF THE BOARD; June 11, 1981

1. This is an application for certification.

2. The name: "Westgate Lodge Nursing Home" appearing in the style of cause of this application as the name of the respondent is amended to read: "Westgate Nursing Home Inc.".

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of Toe Labour Relations Act.

4. Hiving regard to the agreement of the parties, the Board further finds that all employees of' the respondent in Belleville, Ontario, save and except graduate and registered nurses, physiotherapists, occupational therapists, supervisors, persons above the rank of supervisor, office staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

5. There were filed in this matter, in timely fashion, two petitions expressing opposition to the certification of the applicant trade union in the following terms:

"THE LABOUR RELATIONS BOARD

BETWEEN:

Service Employees International Union, Local 183, .A.F. of L., C.I.O., C.L.C.

Applicant

-and­ -

Westgate Lodge Nursing Home

Respondent

PETITION

IN THE MATTER of the application of the Applicant on the 25th day of February, 1981, to be certified as bargaining agent of employees of the Respondent in the following bargaining unit:

'All employees of the Respondent in Belleville, Ontario, save and except professional nursing staff, physiotherapists, occupational therapists, supervisors, persons above the rank of supervisors, office staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period.'

WE the undersigned employees affected by the application are opposed to the certification of the Applicant and desire to make representations to the Board through our representative."

6. In the absence of the petitions, which were signed by twelve persons, the applicant would be entitled to be certified without a representation vote. However, the overlap between the persons who signed membership cards in the applicant and the persons who signed the petitions is sufficient that the Board would exercise its discretion to direct a representation vote if the Board were satisfied of the voluntariness of the petition. Accordingly, the usual inquiry (into the origination of the petitions and the manner in which each signature on them was obtained) contemplated by Rule 48 of the Rules of Procedure was conducted.

7. The signatures on the petitions were witnessed by Adeline Haley and Marjorie Burns on March 5th and 9th, 1981. After reading the green sheet (Notice to Employees of Application for Certification and of Hearing (Form5)), Mrs. Burns and Mrs. Haley decided to consult with Harold O'Brien, a lawyer whom Mrs. Haley had known for a long time. On their instructions Mr. O'Brien drafted the petitions and arranged for them to be typed. Mrs. Haley then spoke on the telephone with a number of employees of the respondent to advise them of the existence of the petitions and to encourage them to sign. During one such conversation with an employee who subsequently signed one of the petitions, Mrs. Haley noted that the employee "had a teenage boy to raise". Mrs. Haley was quite evasive when asked by counsel for the applicant what she meant by that comment. Initially she responded very softly: "She needed the money likely." Upon being asked to repeat her almost inaudible answer, she said: "I don't know". The cross-examination then proceeded as follows:

"Question: What does having a teenage son have to do with the petition?

Answer: She needs the work.

Question: Why would you say such a thing?

Answer: It must have been a figure of speech.

Question: It's not a very subtle figure of speech is it?

Answer: I don't know."

It is reasonable to infer that Mrs. Haley intended to imply by that comment that the employment of the other party to that conversation would be in jeopardy if she did not sign the petition. The probable effect of such statement on an employee can only be properly assessed in the light of employee perceptions concerning Mrs. Haley's position with the respondent and her relationship with the principals of the respondent.

8. Mrs. Haley has been the respondent's activity director for six years. Immediately prior to that, she was employed by the principals of the respondent (Mr. and Mrs. Bond) "at their other nursing home". When they "went to a larger nursing home", she "came along". Although she vigorously denied having any special relationship with the Bonds despite extensive cross-examination by union counsel concerning that matter during her initial testimony before the Board, she ultimately revealed during her cross-examination as a reply witness that she receives "an annuity" from them (or from the respondent at their behest) as an "annual gift" which she has received for four years. It was also her evidence that to the best of her knowledge, the only other persons who receive such payments are two members of management, namely, the Director of Nursing and the Food Supervisor.

9. It appears from the evidence before us that Mrs. Haley does not in fact exercise managerial functions. However, in determining the voluntariness of a petition, the Board is concerned noi with the actual authority or proximity to managerial authority of the person who circulates it, but rather with that employees reasonably perceived that person's authority or proximity to managerial authority to be. Thus, the Board will consider whether employees reasonably perceived the circulator as having managerial powers or as being in greater proximity to managerial authority than other employees (see, for example, Fibre Therm Corp., [1980] 'JLRB Rep. Aug. 1196, and Dad's Cookies Ltd., [1976] OLRB Rep. Sept. 545). The Board has adopted this approach in recognition of the delicate and responsive nature of the employer/employee relationship which gives rise to a natural desire by employees to appear to identify with the interests and wishes of their employer. The Board must be satisfied on the balance of probabilities that the signatories of a petition signed it out of genuine opposition to the union and not out of concern that their failure to sign would be communicated to the employer, or could result in reprisals (see Peacock Lumber Ltd., [1979] OLRB Rep. May 423, and Radio Shack, [1978] OLRB Rep. Nov. 1043.

10. In the present case there is evidence that a number of the employees reasonably perceived Mrs. Haley as being in greater proximity to managerial authority than other employees. Although it appears that employees were not aware of the exact nature of the annuity payments which Mrs. Haley has been receiving for the past four years, at least some of the employees were aware that she has been receiving sums in addition to her normal remuneration. This was confirmed by Mrs. Burns who testified during cross-examination that she thought that some of the employees were of the view that Mrs. Haley, the Director of Nursing and the Food Supervisor own shares in the respondent. Another employee testified that she and 01 her employees of the respondent "feel that Mrs. Haley is part of management" as "she (Mrs. Haley) is in on the share profiting of Westgate Lodge". It is also clear from the evidence that Mrs. Haley is perceived by at least some of the employees to be a friend of the Bonds. Thus, the Board finds that Mrs. Haley was reasonably perceived by at least some of the employees as being in greater proximity to managerial authority than other employees.

11. One of the employees who signed the petition testified that Mrs. Haley telephoned her and told her that if she did not sign the petition she would "lose [her] full-time job and go down to part-time and other staff could bump [her] off [her] job". She further testified: "I was really scared... as soon as she (Mrs. Haley) said I would lose my job or go down to part-time. I've got to support myself. If I went down to part-time I would never get by." Mrs. Haley denied having made any such statement. However, Mrs. Haley's demeanour as a witness, including her evasiveness during cross-examination and lack of candour concerning a number of matters, have led the Board to conclude that she was not a credible witness. Having regard to that factor and to the aforementioned comment about the teenage son which Mrs. Haley admitted to be part of her discussion with another signatory, the Board finds that Mrs. Haley did expressly or implicitly indicate to at least two signatories of the petitions that loss of employment or reduction of hours would be potential consequences of failing to sign a petition against the applicant. Although Mrs. Haley is not in a position to personally effect such changes, in view of the relatively close relationship which she was reasonably perceived to have with the principals of the respondent, it would have been reasonable for employees to conclude that Mrs. Haley was relaying to them information which she had received from the owners or managers of the respondent. (In fairness to the respondent it should be noted, however, that there is no evidence that management was in fact the source of any such information.) Mrs. Burns, who witnessed several of the signatures on the petitions, encouraged employees to sign the petitions by telling them that if the union is certified "there'll be quite a few things taken away from [employees] that [they] already have". She mentioned their birthday holiday and their Christmas party as examples of existing benefits which could be lost in the event that the applicant was certified as their bargaining agent.

12. The burden of proving on the balance of probabilities that a petition represents a voluntary statement of desire on the part of the employees who signed it lies upon the objectors (see Fibre Therm Corp., supra, and Leamington Vegetable Growers Co-operative Limited, [1974] OLRB Rep. June 402). Having regard to all of the evidence before it, the Board finds that the objectors have not discharged that burden in this case and that the petitions do not cast doubt upon the continued support of the members of the applicant for its certification.

13. The Board is satisfied on the basis of all the evidence before it that more than fifty­five 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 March 10, 1981, the terminal date fixed for this application and the date which the Board determines under section 92(2)0) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

14. A certificate will issue to the applicant.