Labourers' International Union of North America, Local 183 v. Montevideo Court Apartments Ltd., 1981 CanLII 952

Labourers' International Union of North America, Local 183 v. Montevideo Court Apartments Ltd.

0714-81-R Labourers' International Union of North America, Local 183, Applicant, V. Montevideo Court Apartments Ltd., and/or Boa Vista Court Apartments Ltd., and/or Donway East Courts Ltd., and/or Boyaca Court Ltd., Respondent, V. Group of Employees, Objectors

BEFORE: D. E. Franks, Vice-Chairman, and Board Members W. H. Wightman and C. A. Ballentine.

APPEARANCES: B. Fishbein and T. Spada for the applicant; John D. Gilfillan and Mrs. E. Thwaites for the respondent; Ron Fraser for the group of employees.

DECISION OF D. E. FRANKS, VICE-CHAIRMAN AND BOARD MEMBER W. H. WIGHTMAN: July 31, 1981

1. This is an application for certification.

2. The bargaining unit in the present case consists of two employees. Prior to the terminal date in this matter, there was filed with the Board, a letter by one of the employees indicating that he had withdrawn his support from the applicant trade union. At the hearing in this matter, the Board heard the evidence of Mr. Ron Fraser concerning the preparation and origination of the letter sent to the Board. He testified that after signing the union membership card, he discussed the matter with his wife. The discussions with his wife were quite extensive and as a consequence of these he decided to file the letter with the Board. His evidence is that he discussed the contents of the letter with his mother-in-law who in turn, on his instructions, drew up the letter and typed it for him. This was apparently done at her place of employment and after it was prepared Mr. Fraser's wife went to her mother's work place and obtained a copy of the letter which she then took back to Mr. Fraser's place of employment. Mr. Fraser then signed the letter and his wife took it to the offices of the Board. Mr. Fraser also signed another copy and he immediately took that to the office of his employer in the complex of buildings where he works and gave the letters to Mrs. Thwaites who is a property manager for the respondent employer. He recalled having some discussion with Mrs. Thwaites at that time. However, he could not recall what the substance of that discussion was.

3. Mr. Fraser's evidence was confirmed by Mrs. Fraser concerning her part in obtaining the letter from her mother and delivering it to the Labour Relations Board. In this matter there is no evidence that the employer, either directly or indirectly participated in the organization or preparation of the letter filed by the employee in this matter. Indeed, we are prepared to accept Mr. Fraser's evidence that after the discussions with his wife, he voluntarily changed his mind concerning membership in the union.

4. Counsel for the applicant trade union argued, however, that Mr. Fraser's conduct in this matter could not be construed as voluntary, since given the relationship between an employee and his employer, the fact that Mr. Fraser gave the letter to his employer thereby letting him know that he had rejected the trade union is in itself not voluntary conduct. We cannot accept the implications suggested by the applicant trade union. Clearly, this is not a case where an employee signs a petition with a reasonable apprehension that his privacy would be invaded by the employer seeing the petition. Indeed, we are prepared to accept on the basis of Mr. Fraser's evidence, that he really had changed his mind before he let his employer, know that he had changed his mind about the trade union.

5. Counsel for the applicant also suggested that on the evidence there were serious gaps concerning the actual preparation of the petition in this case. Thus, fo:r instance, the Board did not hear the evidence of Mr. Fraser's mother-in-law who actually typed the letter. While the Board has in numerous cases rejected petitions where there are gaps in the evidence concerning the people dealing with a petition, we are satisfied that the lack of evidence by Mr. Fraser's mother-in-law is such that it would cast a doubt on the origination and preparation of the petition as a voluntary statement by the employee. Indeed, it is clear from Mr. Fraser's evidence that he had instructed his mother-in-law to type the letter and his mother-in-law has no connection with the respondent employer in the present case. She was in fact merely acting as a secretary or stenographer on his behalf.

6. For the foregoing reasons, therefore, we are prepared to accept the petition in this case as voluntarily signifying a withdrawal of support from the applicant trade union.

7. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER C. A. BALLENTINE;

1. I disagree with the majority decision, on the grounds that the petition of Mr. Fraser was not voluntary.

2. I believe Mrs. Thwaites, the property manager, was behind the petition letter. The evidence of both Mr. Fraser and Mrs Fraser reveals that Mr. Fraser's mother-in-law had discussions with Mrs. Thwaites; it was thereafter that Mr. Fraser was pressured by both his wife and mother-in-law to change his mind and go against the union.

3. The significant point in this case is that Mr. Fraser thought it necessary to deliver a copy of the petition letter to Mrs. Thwaites. Mr. Fraser in evidence stated she read the letter and thanked him for it.

4. Mr. Fraser gave evidence that he changed his mind because he was afraid he would lose his job. This surely is grounds enough for the Board to reject the petition. The Board always has had concern to the sudden change of heart; that is why the Board's practice has been to conduct its own inquiry into the circumstances that give rise to a petition. The circumstances of this case lead me to believe the petition should fail.

5. It was obvious that Mr. Fraser was suffering from a fear complex. This is sad; no employee should have fear to the extent that he is deprived of his rights to join a union of his choice, which is provided by the Act.

6. For the majority to order a vote in this case is ludicrous. By all intent and purpose the union is defeated. There are only two people in the bargaining unit. It is not hard to assume as long as Mr. Fraser is an employee of the respondent company and continues in his state of fear, both he and his fellow worker will be deprived of having the right of free collective bargaining through a bargaining agency.

7. My decision is that the applicant union should be certified as the bargaining agent for the two employees of the respondent.