1197-81-R Teamsters Local Union No. 419, affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Greb Industries, A Division of Warrington Inc., v. Respondent, Group of Employees, Objectors.
BEFORE: Ian Springate, Vice-Chairman, and Board Members C. A. Ballentine and C. G. Bourne.
APPEARANCES: Ken Petryshen and Don Swait, for the applicant; James B. Noonan, Paul Bates, R. C. Ward, James Bartlett, M. B. Dennison and Robert Reece, .for the respondent; Kim Flowers for the objectors.
DECISION OF IAN SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBER CA.
BALLENTINE; October 16, 1981
This is an application for certification.
We find that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, we find that all employees of the respondent in Mississauga, Ontario, save and except foremen, persons above the rank of foreman, office, clerical and sales staff, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
For the purposes of clarity, we note the agreement of the parties that:
(a) persons commonly referred to as "lead hands" are in fact foremen excluded from the bargaining unit;
(b) office and clerical staff working in the respondent's warehouse are not included in the bargaining unit; and
(c) under the respondent's present method of operation, the truck drivers servicing the respondent's Mississauga warehouse are not employed in Mississauga and are therefore outside the bargaining unit.
On the date of the making of the application, there were thirty-one employees in the bargaining unit. The applicant filed documentary evidence of membership on behalf of twenty of these employees. This documentary evidence takes the form of membership cards which include a combination application for membership and an attached receipt. The cards are signed by the employees, and the receipts are countersigned, and indicate that a payment of one dollar has been made to the union. The documentary evidence is supported by a properly completed form 8 "Declaration Concerning Membership Documents", signed by an official of the applicant trade union. On the basis of this material, 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 September 9, 1981, the terminal date fixed for this application and the date which we determine, under section 103(l)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
There was also filed with the Board a number of identically worded statements of desire in opposition to the application signed by employees in the bargaining unit. Statements of desire are not regulated by the Act as directly, or precisely, as union membership evidence. There is no statutory definition equivalent to section 1(1)( I), nor is there any requirement for a monetary payment (in the nature of consideration confirming the act of signing), or a declaration of regularity similar to Form 8. Nevertheless, the existence of statements of desire appears to be contemplated by section 103(l)(j) of the Act and Rule48 of the Rules of Practice; and in any event, the Board has a long established practice of accepting statements of desire and exercising its discretion under section 7(2) of the Act to order a representation vote where: the statements are voluntary, there is evidence given in accordance with Rule 48, and the statements contain 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.
In the instant case, sixteen of the thirty-one employees in the bargaining unit signed statements of desire in opposition to the application. Of these sixteen employees, five had previously signed union membership cards indicating that they supported the union's certification. If we were satisfied that the union members who signed statements of desire did so voluntarily, we would have before us two contradictory pieces of documentary evidence concerning the employees' wishes and would, in accordance with the Board's usual practice, exercise our discretion under section 7(2) of the Act and direct the taking of a representation vote to resolve the issue.
Before the Board will direct the taking of a representation vote on the basis of employee statements of desire, it must be satisfied that when union members signed a statement of desire evidencing an apparent change of heart, they did so voluntarily and were not motivated by a concern that their failure to sign would be communicated to their employer or could result in reprisals. The Board's concerns in this regard were expressed as follows in the Radio Shack case [1978] Rep. Nov. 1043:
"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 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 Board's 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. No. 813 and the cases cited therein.)"
- In assessing the voluntariness of a statement of desire, and in accordance with Rule 48(5) of the Board's Rules of Procedure, the Board requires first-hand evidence of the circumstances surrounding the origination, preparation and circulation of the statement of desire. The "Notice to Employees of Application for Certification and of Hearing" clearly outlines the Board's requirements in this regard. Paragraph 7 of the Notice states as follows:
Any employee, or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5 may attend and be head at the hearing in person or by a representative. Any employee or representative who appears at the hearing will be required to testify, or produce a witness or witnesses who will be able to testify from his or their personal knowledge and observation, as to (a) the circumstances concerning the origination of the material filed, and (b) the manner in which each of the signatures was obtained. (emphasis added)
EXPLANATORY NOTE: Where employees fail to attend in person or by a representative or to testify or produce witnesses to testify as provided in paragraph 7 above, the Board normally does not accept the statement of desire as casting doubt on the evidence of membership filed by the applicant.
Mr. Kim Flowers, an employee in the bargaining unit, was the person most actively involved in obtaining signatures on the statements of desire. Mr. Flowers witnessed the signatures of thirteen of the sixteen bargaining unit employees who signed the statements of desire. Counsel for the applicant trade union contended that because of Mr. Flowers' discussions about his activities with Mr. Terry Trainer, a person generally referred to as a lead hand but who in fact functions in the capacity of foreman, as well as the fact that Mr. Flowers approached certain employees to get them to sign a statement of desire when Mr. Trainer was in the vicinity, the Board should decline to give weight to any of the signatures witnessed by Mr. Flowers. Counsel for the respondent, however, contended that the evidence before the Board indicated that notwithstanding Mr. Trainer's actual status, Mr. Flowers and other employees did not perceive Mr. Trainer to be managerial and accordingly his presence would not have had any influence on the decision of employees to sign a statement of desire. We have strong reservations about the voluntariness of employee signatures obtained by Mr. Flowers when Mr. Trainer was in the vicinity. Although Mr. Flowers and two other witnesses testifying on behalf of the objecting employees stated that they did not view Mr. Trainer as managerial, other employees may well have viewed Mr. Trainer as managerial, particularly in that he does exercise managerial functions. Unfortunately, we do not know which employees were approached to sign a statement of desire by Mr. Flowers when Mr. Trainer was in the vicinity. However, in the circumstances of this case there is no need to come to any final conclusion with respect to the voluntariness of any of the signatures obtained by Mr. Flowers. As indicated above, Mr. Flowers did not witness the signatures of three employees who signed a statement of desire. As it happens, these three employees were among the five employees who signed a statement of desire after having previously become members of the trade union. There is no evidence before the Board concerning the circumstances under which these three union members signed statements of desire, and as to whether or not managerial personnel might have had some impact on their decision to sign. In these circumstances, we are of the view that the voluntariness of their signatures on the statements of desire has not been proven. Even if we were to accept that the other two union members did sign a statement of desire voluntarily, nevertheless their signatures alone would not be sufficient in the circumstances to casue us to doubt that more than fifty-five percent of the employees in the bargaining unit continued as of the terminal date to support the union's certification. Accordingly, we decline to exercise our discretion to direct the taking of a representation vote.
Before leaving this matter, we would refer to the evidence of Mr. Wayne Jarrett, a former employee of the respondent, who testified that he observed a meeting attended by, amongst others, Mr. Flowers and Mr. Reece, the respondent's warehouse manager, just prior to when Mr. Flowers began to approach employees about signing the statements of desire. One possible implication which might be drawn from this evidence is that Mr. Flowers and Mr. Reece were in communication with respect to the statements of desire. In giving, his evidence we do not know whether Mr. Jarrett was deliberately seeking to mislead the Board with respect to this alleged meeting (and if so, why) or whether he innocently recalled an earlier meeting as having been held on the day that Mr. Flowers began his activities to oppose the application. However, whatever the case, we are satisfied that no meeting was in fact held at the time claimed by Mr. Jarrett and that at all times Mr. Flowers was acting on his own initiative without having previously discussed the matter with Mr. Reece.
Having regard to the union's membership position, and our decision not to exercise our discretion to direct the taking of a representation vote, a certificate will issue to the applicant.
DECISION OF BOARD MEMBER C. G. BOURNE;
I dissent.
There have been no allegations of intimidation or coercion in this case, and as the majority have stated in paragraph 8, sixteen of thirty-one employees signed a petition in opposition to the union, only five of whom had previously signed union cards.
This would appear to me to be a classic case for the holding of a representation vote so that employees could freely express their preference and I would have so directed.