Teamsters Local Union. 647 v. Frito-Lay Canada Ltd., 1981 CanLII 803

Ontario Labour Relations Board

[1981] OLRB Rep. May 538

1593-80-R Teamsters Local Union. 647, Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Frito-Lay Canada Ltd., Respondent, v. Group of Employees, Interveners.

BEFORE: R.O. MacDowell, Vice-Chairman, and Board Members B. Armstrong and J. A. Ronson.

APPEARANCES: L. Gottheil, D. Paffitt and R. Brazeau for the applicant; J. B. Noonan, J. R. Wright and Win. McPhee for the respondent; J. Sotos for the interveners.

DECISION OF R. O. MacDOWELL, VICE-CHAIRMAN, AND BOARD MEMBER B. ARMSTRONG; May 8, 1981

1. This is an application for certification.

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

3. Having regard to the agreement of the parties, the Board finds, pursuant to section 6(1) of the Act, that all route salesmen employed by the respondent working in Mississauga, Ontario, save and except district sales manager, persons above the rank of district sales manager, warehousemen, office staff, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. In sup ~ort of this application for certification, the trade union filed documentary evidence of membership on behalf of approximately seventy-seven per cent of the employees in the bargaining unit found by the Board to be appropriate. This documentary evidence took the form of membership cards which included a combination application for membership, and an attached receipt. These cards are signed by the employees, and the receipts are countersigned and indicate that a payment of one dollar had been made to the union. The documentary evidence is supported by a properly completed Form 8 statutory declaration attesting to the regularity and sufficiency of the membership evidence. There is no allegation of any irregularity in the form of this documentary evidence, nor is there any alleged impropriety in the manner it was solicited. The form and contents of the evidence are satisfactory and it was properly filed within the time limits prescribed pursuant to section 92(2)(j) of the Act. The union membership evidence, standing by itself, demonstrates that the union has a level of "membership support" well in excess of that required for certification without recourse to a representative vote.

5. There was also filed with the Board a statement of desire or "petition" signed by thirteen employees indicating that they wished to oppose the certification of the applicant. This petition included the names of six individuals who had previously signed membership cards and paid one dollar in respect of membership fee; and were, therefore, "members" of the union within the meaning of section 1(1)0) of the Act. These "members" had had purported change of heart and now allegedly no longer wished to support the applicant's certification. It was apparent, that if all of the union's members who signed the petition had had a voluntary change of heart, and now no longer wished to support the union's certification, the Board would, in accordance with its usual practice, exercise its discretion to order a representation vote to resolve the issue. This is the course of action urged by both the respondent and interveners.

6. Following the signing of the petition, however, all six of the union members whose signatures appear on it, signed a further document indicating their desire to delete their names from the petition and reaffirming their support for the union. This "revocation document" also takes "petition form" and has five signatures on one side, under the following heading:

"1/ We the undersigned did sign a petition against the formation of a union at Frito-Lay Can. Ltd/ Mississauga Plant due to pressure. I/We do hereby renounce such signature/ signatures and the intent therein contained and do hereby state that I/We wish my/our name/names deleted from the said petition and do so desire to have Teamsters Local 647 to be my/ our bargaining agent."

A sixth signature appears on the back of the document under a somewhat different handwritten heading:

"I the undersigned wish to strike my name from the petition against the union, to avoid detection in this manner."

In the case of five of the six signatures, the signature of a witness appears adjacent to that of the subject employee.

7. Statements of desire or "petitions" are not regulated by the Act as directly, or precisely, as union membership evidence. There is no statutory definition equivalent to section l(l)(j), nor is there any requirement for a monetary payment (in the nature of consideration confirming the act of signing), on a statutory declaration of regularity similar to Form 8. Nevertheless, he existence of statements of desire appears to be contemplated by section 92(2)(j) of the Act and Rule 48 of the Rules of Practice; and in any event, the Board has a long established practice of accepting such petitions and exercising its discretion to order a representation vote where: the petition is voluntary, there is evidence given in accordance with Rule 48, and the petition contains the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt that the union's members continue to support its certification. The Board must be satisfied however, that when these members signed the petition evidencing an apparent change of heart, they were doing so voluntarily and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer or could result in reprisals.

8. It must be clear that the circulation of the petition is free from the actual, or perceived, influence of management. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before; and while an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. Frequently, such petitions are openly circulated on or near the employer's premises during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with the employer and may be so perceived. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly an employee may be motivated to sign a petition because of employer conduct subsequent to his joining the union which suggests that continued support for the union will result in the loss of his job, or other adverse employment consequences. In neither case, can one regard his signing the petition as truly voluntary because in both cases, it results from a perceived threat to his job security. It is for this reason that the Board undertakes the inquiry contemplated by Rule 48(5) in order to satisfy itself from the circumstances of the origination, preparation and circulation of the petition, that the document truly represents the voluntary wishes of those who signed it. In Radio Shack[1978] OLRB Rep. Nov. 1043, the Board discussed the nature of this inquiry in a long passage to which we might usefully refer:

"The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union, represents a voluntary change of heart. The Board recognizes that the delicate and responsive nature of the employer-employee relationship and having regard to it is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Boards approach to these matters is described in the leading Pigott Motors case, 63 CLLC ¶16, 264 in the following terms:

'In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.'

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)"

9. "Revocations" or statements reaffirming membership in or support for a union are not specifically regulated by the Act either; but, as in the case of petitions, the Board has a well established practice of recognizing such documents-provided that they are filed in a timely fashion, and there is sufficient evidence of the circumstances of their circulation that the Board can be satisfied that they too represent a voluntary statement of employee wishes. In this respect, both "petitions" and "revocations" have equal status. If a person who has signed both a membership card and a statement opposing the union, subsequently voluntarily reaffirms his membership in, and/or continued support for, the union, the Board will generally disregard the effect which the appearance of his signature on a statement opposing the union might otherwise have had, and will treat his most recent statement as the best evidence before the Board as of the terminal date (i.e. the time prescribed pursuant to section 92(2)6) of the Act for ascertaining membership under section 7(1) of the Act). In other words, where there is a properly signed and countersigned membership document which is supported by consideration and a properly completed statutory declaration, as well as a voluntary revocation of any intervening statement in opposition to the union's certification, the Board will usually disregard the latter, and treat the membership document and the revocation as both sufficient evidence of membership within the meaning of section 1(1)6) and sufficient reason why the Board should not exercise its discretion to order a representation vote.

10. While petitioners and revocations have equal status in the sense set out above, the Board recognizes that in assessing the weight to be given to a revocation or "counter petition" there are different considerations than in the case of a petition opposing the union. In the case of a petition, employee signatories are more likely to be sensitive to the perception of management involvement or the fear that, a failure to sign may be communicated to their employer and could result in reprisals. In the case of membership evidence or revocations, however, support will seldom be solicited by individuals who can affect an employee's economic destiny, nor will there usually be any fear that a failure to sign a membership card or revocation will be communicated to the employer and could result in adverse employment consequences. (However, see Veres Wire[1976] OLRB Rep. July 337 where the Board rejected certain union membership evidence because of the involvement of a foreman in the union's organizing campaign). Accordingly, the purpose of the inquiry into the origination of a revocation statement is to determine whether there is any evidence of threats, intimidation, undue influence, misrepresentation, or other conduct which might impair the ability of an employee to voluntarily express his wishes. The concerns expressed in Radio Shack and Pigott Motors have no strict application to revocations or union membership evidence.

11. The Form 5 notice to employees was posted on the respondent's premises on Friday, October 31, 1980. The terminal date (i.e. the date by which membership documents or statements opposing the union must be filed with the Board) was fixed at November 6, 1980. The activity giving rise to the petition and revocation documents took place between November 4th and November 6th. In both cases, this activity was somewhat rushed, as the opponent and principal supporters of the trade union both sought to persuade their fellow employees to take a position or change their minds prior to the November 6th deadline.

12. Charles Craig was the author and sponsor of the petition. Dan Parfitt and Rick Brazeau were the proponents of the "counter petition" or revocation document. The Board heard evidence from all three employees concerning the origination and circulation of their respective documents. As might be expected when employees are asked to recall events which have occurred same time before, the evidence of each witness contained certain inconsistencies or was varied as cross-examination sharpened their recollection. Some of these inconsistencies are noted hereunder but, in the result, we do not think that they effect the ultimate outcome of the case.

13. The activities surrounding both documents reached a peak on November 6th, and to some extent, the campaigns were carried on concurrently. It will be convenient to deal first with the petition, and then turn to the revocations. In order to preserve the confidentiality of the names on the petition and revocation documents, (see section 100 of the Act) where it is necessary to do so, the Board will refer to the petitioners as P-I, P-2, P-3, etc. and to the persons who subsequently revoked their names from the petition as R-l, R-2, R-3, etc. R-6, for example, with the sixth signatory of the revocation document and it was he who signed under the separate heading mentioned in paragraph 6 above.

14. As we have already mentioned, the moving force behind the petition was Charles Craig. Craig had not been approached to join the union. The union supporters knew that he socialized with managerial personnel and concluded (correctly as it turned out) that he would not be receptive. Craig learned of the certification application on October 31, 1980, when the Form 5 notice w ~s posted, and told the Board that he typed the petition at home and began to circulate it on Tuesday, November 4th, (the petition is dated "this fifth day of November"). He also testified that he was scheduled to be on holidays during the week of November 3rd, and that; consequently, he was free to pursue this activity both on and off company premises during the regular working day. Craig maintained that there was no management involvement with the document, although he acknowledged that the respondent must have known about his activities.

15. The respondent has collective bargaining relationships with the applicant in other parts of its operation, and appears to have taken a "hands off" attitude with respect to all employee activity in favour of, or opposed to the trade union. When the Form 5 notice to employees was posted, the management of the respondent advised its employees that the notice spoke for itself and that they (management) were unable to make any comments as to the response which employees should make. Indeed, when Craig and Brazeau approached management for the home phone numbers of the employees in the bargaining unit, they were given these numbers without comment and without any questions being asked. When Craig told a member of management that he (Craig) intended to hold two meetings in the salesmen's room and that there should be no managerial persons present or in the vicinity, no effort was made to promote or interfere with those meetings, and managerial personnel were neither present nor did they interrupt the discussion.

16. The first meeting was held at the end of the business day of Wednesday, November 5th, in the salesmen's room adjacent to the management offices. The Wednesday evening meeting lasted about 45 minutes and the employees present debated the "pros and cons" of the union. Subsequently, some of them signed the petition and some went home.

17. A second meeting was held in the same place on the following morning. This meeting began about 8:00 A.M. and lasted till about 9:30 - that is during a period when the employees would ordinarily be on their routes. Again, there were no managerial personnel present, and the debate about the relative merits of union representation continued. In addition to calling these meetings, Craig also approached individual employees at various points along their delivery routes in an effort to persuade them to sign the petition. Craig was persistent, and in at least one case, approached an individual on three separate occasions. However, there is no evidence of any improper conduct, intimidation, or threat to employee job security.

18. Parfitt and Brazeau were aware of Craig's activities, and the fact that some of the union's supporters had signed his petition. On the evening of November 5th, Parfitt had a series of telephone conversations with Brazeau, Don Swait, (a union organizer,) and an employee who had signed the petition but wished to have his name removed. Parfitt discussed the possibilities of a counter petition with Swait, and perhaps Brazeau, and as a result of those conversations prepared the revocation document in the form noted above. Parfitt and Brazeau then set about collecting the signatures of anyone whom they thought had signed the petition. The first such signature was the individual who the evening before had expressed reservations about signing the petition. That individual approached Craig on the morning of November 6th, requesting that his name be removed from the petition. Craig refused, and the employee (R-l) became the first individual to sign the revocation document.

19. Although there may have been some discussion among the employees after the meeting earlier that morning, no one except R-l signed the counter petition at that time. The rest of the signatures were solicited on the afternoon of November 6th. It seems clear, however, that the employees would probably have been aware of the activities of the supporters and opponent of the union.

20. Brazeau and Parfitt planned to make a final effort to solicit support for the union late in the afternoon of November 6th, and planned to meet the employees at a bank, a couple of blocks from the plant. It was the employees' practice to visit the bank on Thursday afternoons to collect their deposit receipts, so there was a reasonable prospect of contacting a large number of them. Brazeau explained that they considered the bank "neutral ground" and felt that the employees would be less inhibited if they were approached there. Parfitt and Brazeau realiied that they would have to work quickly in order to solicit the necessary signatures within the time limit prescribed by the terminal date. To make this deadline, the revocation document would have to be mailed by registered mail no later than November 6th. Craig however, had precisely the same idea, and faced the same deadline. He too appeared at the bank late than afternoon.

21. Parfitt and Brazeau became concerned about the presence of the principal union opponent (who, as we have already mentioned, was perceived by Parfitt and Brazeau at least, as having a special relationship with management) so they decided that Parfitt would return to the plant to solicit signatures there, and return as soon as he could. Meanwhile, Brazeau hoped to engage Craig in conversation and perhaps delay his return to the plant. It was at the plant that R-2, R-, and R-4 signed the revocation document. Parfitt, who witnessed their signatures, testified that the employees seemed to be aware of the counter petition and that no persuasion or argument was required to induce them to sign it. Parfitt then returned to the bank. It was shortly after 4:00 P.M. by this time, and he was anxious to get as many signatures as possible and get the counter petition in the mail. Upon his return to the bank, he gave the petition to Brazeau and, returned to his own truck which was parked nearby. R-5 and R-6 signed in Brazeau's truck.

22. It is in respect of the circumstances surrounding the signing of R-6 that the evidence is somewhat unclear and inconsistent. Parfitt testified that he was walking back and forth between his truck and Brazeau's and that he saw both R-5 and R-6 signing the document -although he was not present at Brazeau's truck during the intervening period, or even during the entire conversation. However, he also indicated in his evidence that by the time he got back to the bank, he thought that Craig had left. This remark was not pursued in cross-examination and it is with respect to the whereabouts of Craig and Parfitt, at the time R-5 and R-6 signed, that there remains some confusion. Brazeau testified that following some discussion with R-6, Craig came over to the truck too, and intruded into the conversation. Brazeau then asked Craig to leave, (which he did) and R-6 was just signing the hand-written part of the document as Parfitt approached. Brazeau told the Board that although Craig was not present when R-6 signed, he believed him to be in the vicinity. Craig recalls approaching Brazeau's truck and seeing R-6 in it. He also recalls Brazeau asking him to leave the truck so that R-6 could sign; but Craig testified that Parfitt did not arrive until just after R-6 had left -at which point he got into the truck with Craig and Brazeau. Neither Brazeau nor Parfitt mentioned this final conversation with Craig, although neither of them were asked about it specifically. They both said that after R-6 signed, Brazeau took the document to a post office because they were anxious to get it in the mail before the deadline.

23. It is difficult to reconcile the evidence of the three witnesses concerning the circumstances surrounding the signing of R-6, but we do not think we would be justified on the basis of this inconsistency in rejecting the totality of the evidence of any of them. Some degree of inconsistency is to be expected in every case, and results solely from the witnesses' imperfect recollection of events. All of the witnesses in this matter were straining to recall specific conversations and contacts in a situation in which all of them were rushed; and we do not think we should lightly infer a deliberate scheme to mislead the Board. Even if, Craig's recollection of events is preferred, his version does not reflect adversely on the voluntariness of the signature of R-6 and there is no evidence of any threats, undue influence or impropriety with respect to the solicitation of any of the other signatures. Indeed, Brazeau testified that the wording of R-6's revocation statement was changed so that it would be clear that he had not been unduly influenced when signing the petition, and the evidence respecting the wishes of R­I (while necessarily hearsay) was entirely consistent and confirmed by both Craig and the supporters of the union. Moreover, it must be remembered that if any two of the six signatures on the revocation document are accepted as voluntary, the union would retain the support of more than fifty-five per cent of the respondent's employees. Despite the evidentiary problems concerning the circumstances in which R-6 signed, we do not think the revocations statement should be disregarded.

24. Having regard to the totality of the evidence, the Board is satisfied that it should accept the revocation document as a bona fide statement by its signatories repudiating their support for the petition and reaffirming their support for the trade union.

25. Having regard to the totality of the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees of the respondent were members of the union on November 6, 1980, the terminal date fixed for this application and the date which the Board determines, pursuant to section 92(2Xj) of the Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.

26. A certificate will issue to the applicant.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. The evidence in this matter causes me to believe that the Board, in its discretion, should order a vote to determine the true wishes of the employees.

2. The employer adopted a strict "hands-off" approach to the certification application. There is no evidence that it attempted to interfere in any way with these proceedings. Management personnel refused to discuss the union with employees, provided information about employees to the union organizers and the petitioners, and allowed employees to hold private meetings on the premises, at which the pros and cons of union representation were discussed. The employees involved are driver-salesmen and, if the three who testified before the Board are any indication, they comprise a sophisticated and very and very articulate work-force.

3. When the union organizers Parfitt and Brazeau became aware of Craig's petition on 5 November, 1981, they telephoned Don Swait, the business agent for the union. It was Swait who suggested that the revocation contain the statement that the employee had signed the "Craig petition" due to "pressure". The sixth person (R6) who signed a revocation refused to agree to this wording. The evidence of Brazeau was to the effect that R6 stated that he had not been pressured by Craig into signing the petition, but really wanted to stay in the good graces of both sides. That is the reason for the different wording of R6's revocation. Indeed there is no evidence whatsoever of improper conduct by Craig; to the contrary Craig had at least two cogent reasons to use in persuading employees that they did not need a union.

4. 1 am also concerned with the admission by Parfitt that he and Brazeau induced the six employees to sign the revocations by telling them that if "(the application) doesn't go through and they find out who we are, we will be gone." Parfitt explained that the statement meant that the employer would fire those who had signed union cards if the union wasn't certified. We heard no evidence from which it could be suspected that this statement might be true or even founded on fact.

5. Lastly, there is no doubt in my mind that Parfitt and Brazeau attempted to mislead the Board with respect to the circumstances in which R6 signed his revocation. Both men testified that they did not pressure R6 into signing nor did a shouting match occur between them and Craig in the presence of R6. Under cross-examination by counsel for the employer, Brazeau blurted out that there was in fact a loud discussion between him and Craig in the presence of R6 and that he demanded that Craig leave him alone with R6. When Craig left, Brazeau then asked R6 if he would sign a revocation with a different wording and R6 agreed. The Board heard this evidence eight days after the incident took place.

6. We were invited by union counsel to "step into the shoes" of the employees in assessing the voluntariness of the membership cards, petition and revocations. Having attempted to do so, I do not feel the evidence indicates one way or the other what the true wishes of these employees are. I would order a vote.