[1981] OLRB Rep. February 171
2126-80-R Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 91 affiliated With the International Brotherhood of Teamster, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Intercity News Company Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members C. G. Bourne and B. Armstrong.
APPEARANCES: Ken Petryshen and Don Swait for the applicant, Allen Craig, Hugh Curry, Paul Munroe and Anneli Talvila for the respondent, Kenneth Bird for the objectors.
DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN AND BOARD MEMBER B. ARMSTRONG; February 24, 1981
This is an application for certification.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent working in Ottawa, Ontario, save and except the terminal manager, those above the rank of terminal manager and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
Based on the list of employees filed by the respondent and the bargaining unit described above, the Board is satisfied that there are six employees in the unit. The applicant has filed five acceptable membership cards, all of which correspond with the names of employees on the respondent's list. These cards demonstrate membership support for the applicant in excess of fifty-five per cent of the bargaining unit, sufficient for the applicant to be certified without a vote. There is, however, a duly filed statement in opposition to the application (a petition). The petition contained the signatures of four persons, three of whom previously signed membership cards in the applicant. Therefore, if the petition represents the voluntary wishes of the persons who signed it, it would normally cause the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be held. There was also filed with the Board a handwritten statement bearing one signature of a person purporting to be an employee of the respondent who had signed the petition and who had also signed, prior to that, a membership card in the applicant. The statement was a revocation of the petition and a reaffirmation of the application for membership in the applicant. If this statement is voluntary, it would have the effect of reducing by one the number of persons who signed both the petition and membership cards. That is still sufficient, however, to reduce the applicant's apparent membership support below the level required for certification without a representation vote. The parties were so advised at the hearing. They were advised also that the Board would conduct its usual inquiry into the origin, preparation, circulation and filing with the Board of the petition in order to determine whether it represented the voluntary wishes of the employees who signed it.
Since the sequence of events in respect of the filing of the application and of the reply and other documents filed as a result of it have some significance for what took place at the hearing, the Board finds it useful to review the sequence and manner in which these various documents were filed. The application was made January 6, 1981 by registered mail and was received by the Board on January 7th. That same day it acknowledged receipt of the application and sent notice to the respondent together with copies of a Notice to Employees in the customary form, with direction to the respondent to post these notices. By the same means, the Board advised the applicant, respondent and employees that it had set a terminal date of January 16th for the application and a hearing date of February 6th. The application described the bargaining unit as set out above. On January 14th, the Board received a telex from the applicant seeking to amend the bargaining unit description to exclude office staff. The respondent was notified by telephone the same day and by a confirming letter mailed that day instructing the respondent to post a copy of the telex adjacent to the Notice to Employees.
On January 16th the Board received the petition referred to above dated and mailed registered on January 15th. The petition was acknowledged and the other parties advised of it on the same day that it was received, the parties were advised that the petition was in the following form:
January 15, 1981
We, the undersigned, are opposed to the Application for Certification
and Hearing between Teamsters, Chauffeurs, Warehousemen & Helpers
Local Union No. 91 and the Employees of Intercity News Company
Limited.
(4 Signatures)
(4 Names)
I, (Name), desire to represent the above named to the Board in opposition to the Application for Certification and Hearing between Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 91 and the Employees of Intercity News Company Limited.
(Signature)
(Name)
(Address)
(Phone Number)
A reply to the application from the respondent, dated January 14th, 1981 and mailed registered on January 16th, was received by the Board on January 19th. The reply indicates that the respondent agreed with the bargaining unit description contained in the application. The reply was accompanied by the respondent's list of the employees, five in number, included in that bargaining unit. The reply was acknowledged the same day that it was received and a copy of it was sent to the applicant. On January 20th, the Board received, hand delivered, a corrected reply dated January 15th from counsel for the respondent, together with a corrected list of employees, still five in number. The name of one employee had been deleted and another added. The corrected reply indicated that the respondent still agreed with the bargaining unit described in the application as originally filed. The revocation and reaffirmation referred to above, dated January 15th, was mailed registered on January 16th and received by the Board on January 22nd. The following day its receipt was acknowledged and the other parties were advised of the form of the document. On January 28th the Board received, hand delivered, a letter from respondent counsel advising of a sixth name to be added to the list of employees.
Finally, a letter dated February 4th from the applicant was received, hand delivered on February 5th, alleging that the respondent was involved in the instigation and circulation of the petition. Respondent counsel was immediately advised of the letter and on the same date, February 5th, delivered to the applicant a demand for particulars.
At the hearing into the application on February 6th, the applicant and the respondent advised the Board that they were agreed to the bargaining unit description contained in the original application, the Board ascertained from Kenneth Bird, who represented the objectors at the hearing, that he had no objection to that description of the unit. The Board, therefore, accepted the agreement of the parties as noted in paragraph 4 above. The Board was advised by the applicant, prior to the Board embarking on its inquiry into the petition, that the applicant was withdrawing the charges contained in its letter dated February 4th about the respondent being involved in the origin and circulation of the petition.
Kenneth Bird told the Board that the petition had been prepared and typed by one of the other three employees who had signed it after having discussed the wording of the head note on the petition with Bird. The other two persons who signed the petition were not present during that discussion, nor was Bird present when the petition was typed. Bird signed the petition but did not witness its signing by the other three persons. The petition was not sent to the Board by Bird and he was not present when it was mailed. It was decided that he would represent the petitioners at the hearing when it became evident that the other three would be unable to attend. This decision was made prior to the sending of the petition to the Board and it was Bird's name that appeared in the statement which is set out on the petition below the signatures. The Board's acknowledgement of the petition was made to Bird and with it he received a copy of the Board's booklet "Guide to The Labour Relations Act." There was no further discussion amongst the four petitioners as to who would appear on their behalf at the hearing, whether to represent them or to testify on their behalf. Bird was not certain when he learned of the union's request to amend the description of the bargaining unit. While he thought it was around January 16th, the respondent advised the Board at the hearing that the notice of change had been posted on receipt from the Board on January 19th. In view of the date that it was mailed by the Board, the latter date is the more likely time when Bird became aware of the change. He told the Board that he did not approach the other three petitioners to discuss the import of that change or whether it would affect their representation at the hearing, nor did the others approach him in that respect.
It was evident during the Board’s examination of Bird that he was not a party to significant aspects of the origin, preparation, circulation and filing with the Board of the petition and he admitted this fact. He had advised the Board also that he had no other witnesses to testify as to the events giving rise to the petition being filed with the Board. In view of these circumstances and having regard for the Board's requirement that it be able to assess whether the petition is voluntary from the personal knowledge and observation of the persons testifying as to the origin of the petition and the manner in which each signature was obtained, the Board terminated the examination of Bird at this stage and asked for the submissions of the parties on the exercise of the Board's discretion under section 7(2) of the Act.
Bird, for the objectors, took the practical approach that a representative vote would allow the employees to express secretly their wishes about representation by the applicant and would dispel the problems created by the gaps in the evidence about the origin, preparation, circulation and filing of the petition with the Board.
Respondent counsel submitted that, from the point of view of fairness to the objectors, the circumstances of this case make it a classic example of one where the Board should exercise its discretion and direct that a representation vote be held in spite of the applicant's apparent support being in excess of fifty-five per cent. He based his submissions on two grounds. First, having regard for the applicant's vacillation about the proper description of the bargaining unit which it was seeking, if a representation vote was directed and held with expedition, employees would know for the first time what was the ultimate bargaining unit being applied for and after the usual campaigning would be able to make a proper choice as to whether they wished to be represented by the applicant for that unit. Second, a vote would dispel any cloud over the application resulting from:
(a) the various changes in the bargaining unit description;
(b) any question of whether those changes impacted on the petitioners' choice of their representative at the hearing and what witnesses would be required to satisfy the Board of the voluntary nature of the petition;
(c) the revocation and reaffirmation mailed to the Board on the terminal date of the application and about which the Board deemed it unnecessary to hear evidence; and
(d) the applicant's charges concerning the respondent which were filed almost on the eve of the hearing and then withdrawn at the hearing.
- The Board has expressed its concern in many decision dealing with petitions about gaps in the evidence as to the origin of the petition and the manner in which the signatures were obtained and the effect of those gaps on the Board's determination of whether a petition is voluntary. This concern has been expressed both where the Board had found petitions to be voluntary and where it has found the contrary and whether the petition was dealing with an application to create or terminate bargaining rights. In a recent decision, Royal Hydrofoil Cruises (Canada) Limited, Board File No. 0795-80-R, as yet unreported, which issued November 12, 1980, the Board had to deal with a difficult problem created by gaps in the evidence before it pertaining to a petition in an application for certification. That decision contains the following cogent statements about the problem of determining whether a petition is voluntary when it is faced with gaps in the evidence about the petition.
"As stated in the Pigott Motors case, 63 CLLC ¶16,264:
'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 or 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.'
As the above passage illustrates, the Board's concern in any representation application is in ascertaining the true wishes of the employees. In assessing an employees' statement of desire the issue is simply one of voluntariness, whether in the context of the Board exercising its discretion under section 7 of the Act, or of an application for termination under section 49, where the word "voluntarily" is specifically used. Gaps in the evidence, or the involvement of management in a petition (whatever else may be its consequences) are relevant to the Board's inquiry in a representation context to the extent that they affect the Board's determination on the fundamental. Issue of voluntariness (see Fuller's Restaurant, [1979] OLRB Rep. May 395). Where management has been involved, of course, the Board has historically been prepared to draw liberal inferences that that fact may have been known generally to employees. It is, however, because the sole issue is voluntariness that the Board finds itself constrained to disregard an employee petition not only when it concludes that the voluntariness of employee acts may have been affected by the actual involvement of management, but where it may have been affected by no more than a perceived involvement (see, e.g., Morgen Adhesives of Canada Limited, [1975] OLRB Rep. Nov. 813). It is the reasonable perception of the employees that the Board must assess.
In a 'petition' case, therefore, the Board requires sufficient evidence before it to enable it to make this assessment. Hence the Board's Rules, in section 48, contain the following caution:
'48.-(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witness as to,
(a) the circumstances concerning the origination of the statement of desire; and
(b) the manner in which each signature on the statement of desire was obtained.’
and this is reflected in the Notice to Employees (Form 5) as well. These are not technical standards of evidence; they simply reflect the reality that when all of the evidence is in, the Board has to be satisfied that any employee statement being relied upon is voluntary. In this regard, the Board in Fuller's Restaurant, supra, had this to say:
'18. The Board has held that the requirement for first-hand evidence of the 'circumstances surrounding the origination, preparation and circulation of a statement of desire places an onus on those wishing to establish the voluntariness of the statement to call evidence of how each of the signatures was obtained as well as evidence detailing the physical preparation and the actual delivery of the document to the Board'. (See Formosa Spring Brewery, [1974] OLRB Rep. Oct. 696.) Because the onus is on the petitioners to satisfy the Board as to the voluntariness of the statement, and because the signing of a statement against the union after signing a card in support represents a sudden change of heart, any gap in the evidence from preparation to delivery to the Board may prove fatal in any given case. It is for this reason that the Board has put petitioners on notice as to the extent of the evidence which may be required. A gap in the evidence relating to the delivery of the statement to the Board when considered in conjunction with other gaps in the evidence relating to custody of the document or in conjunction with evidence suggesting company involvement may cause the Board to find that it has not been satisfied as to the voluntariness of the statement. . .
The reference in Royal Hydrofoil, supra, to the Notice to Employees (Form 5) is reference to the following cautionary statements which appear in that notice following instructions setting out what must be contained in any statement in opposition to an application and the time limits within which it must be filed with the Board.
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 heard 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.
THE BOARD MAY DISPOSE OF THE APPLICATION
WITHOUT FURTHER NOTICE AND WITHOUT CONSIDERING
THE STATEMENT OF DESIRE OF ANY PERSON WHO FAILS
TO ATTEND.*
- 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.
- The copy of the Board's "Guide to The Ontario Labour Relations Act" which Bird received, in keeping with the Board's customary practice, contains on page 29 the following information on how employees who have filed a statement in opposition to an application may prove the voluntary nature of that statement:
If the statement of desire will affect the certification process by forcing the holding of a vote, the Board will call upon the objecting employees to prove that the statement is voluntary. A representative of the signing employees must appear and call witnesses to testify under oath about how the statement of desire originated (who drafted it and where) and about the manner in which each of these signatures was obtained. This means that evidence must be given about the circumstances under which each employee signed the statement of desire by someone who was present at the time. Through all this, the Board makes certain that the names of the employees on the statement of desire are not revealed to the employer or the union. Reference is made only to a number placed beside each of the signatures by the Board. The people who present this evidence will be questioned by the Board, and may be questioned by the representatives of the union and the employer. If at the end of the enquiry the Board is not satisfied that the statement is a voluntary expression of the employees who signed, it will be dismissed.
The cautionary statement on the Notice to Employees is a clear warning of the need for the objectors to establish at the hearing through witnesses who"... testify from ... their personal knowledge and observation,.. ." about the origin of the petition and the manner in which each signature on its was obtained. The Board was concerned in this case, that the objecting employees may have been adversely affected in their choice of a representative and witnesses by the applicant's requested amendment to the bargaining unit description. It is clear on the evidence that their choice was not affected by that change. The Board concludes from that evidence that the objector's representative at the hearing was selected on a basis not related to or affected by this change and the Board draws the same conclusion in respect of the absence of other witnesses at the hearing for the objectors. Moreover, the Board is further satisfied that the objector's choice was not adversely affected by the applicant's reversion at the hearing to its original bargaining unit description.
As the Board's decision in Royal Hydrofoil, supra, points out, in assessing a petition “… the issue is simple one of voluntariness,…” and the "Gaps in the evidence, … are relevant to the Board's inquiry in a representation context to the extent that they affect the Board's determination on the fundamental issue of voluntariness…”. It is in that context of the need to determine the voluntariness of a petition that the Board commented further in Royal Hydrofoil, supra, after referring to the evidentiary requirements of section 48 of the Board's Rules of Procedure: "These are not technical standards of evidence; they simply reflect the reality that when all of the evidence is in, the Board has to be satisfied that any employee statement being relied upon is voluntary."
In the absence of sufficient evidence in the instant case as to how the petition came into being and in the absence of any evidence whatsoever about the manner in which the signatures on the petition, other than Bird's, were obtained, and having regard for the principles set forth in the Board's decision in Royal Hydrofoil, supra, the Board is not satisfied that the statement of desire in opposition to the application expresses the voluntary wishes of those employees who signed it. The Board therefore declines to give any effect to that statement. Furthermore, there is no evidence of other circumstances in this matter which would cause the Board to direct that a representation vote be held. Neither the statement of revocation and reaffirmation nor the applicant's filing and subsequent withdrawal of allegations that the respondent was involved with the petition have relevance in the particular circumstances of this case to the exercise of the Board's discretion under section 7(2).
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER, C. G. BOURNE;
I must dissent with the majority of the Board in their finding even though it conforms to established board practice.
However, it seems to me that it is the time the Board reviewed its practice in cases where there has been misunderstanding and confusion on the part of petitioners and where there is no allegation of taint or involvement on the part of the employer. Such is the case here.
The petitioners in this instance were sent a copy of the 'Guide'. They did not read this, being unfamiliar with written procedures and inexperienced in formal matters. This is not an uncommon occurrence.
In the award of the Divisional Court in Fuller's Restaurant, where the circumstances are admittedly different, it was suggested that the Board "might devise and furnish a form of objection to accompany Form 5 in terms that lay people would understand." Certainly the unfamiliarity with procedure which faced the objectors here is almost habitual.
The entire position of petitioners is ambiguous, not to say paradoxical. There is no direct reference to a petition in the Act itself; it is merely referred to in section 48 of the Board's Rules, and in Form 5 which is posted in the employer's premises. The Board itself, when asked for direction by objecting employees quite properly maintains its neutrality and confines itself to sending out the Guide. The arm's length involvement, together with the pressures of time, generally frustrates the wishes of the objectors. It is time that the situation was reviewed, either to deny the petition altogether and substitute a vote in all cases, or set out the right in more explicit form.
Rule 48(5) reads: “The Board may dispose of the application without considering statement of desire of any employee ... etc." as set out in the majority award. So long as the present situation continues, this would appear to give the Board discretion to deal with the matter and I believe it should exercise the right to order a vote where there is no taint of any sort and where technicalities or lack of familiarity with the Board's processes are the only hindrances to its acceptability.