[1981] OLRB Rep. March 304
2432-79-R Homida Ali, Applicant, v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Respondent, v. Ontario Hospital Association (Blue Cross), Intervener.
BEFORE: M G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and B. L. Armstrong.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; March 13, 1981
- This matter involves an application for a declaration terminating the bargaining rights of the respondent, pursuant to the provisions of section 49(1) of The Labour Relations Act. The Board by its decision dated December 23, 1980, (See [1981] OLRB Rep. Dec. 1759) dismissed the application on the basis of the evidence before it. The Board is now in receipt of a letter dated February 2, 1981, filed by Michael Horan as counsel for the applicant petitioners, requesting the Board to reconsider that decision, on the grounds set forth in the letter. The letter reads:
Further to my letter of January 22nd, 1981, I am hereinafter setting forth the grounds for the request that the Board reconsider its decision under Section 95 of The Labour Relations Act. Those grounds are as follows:
- The decision of the Board is contrary to the weight of the evidence adduced in support of the application for termination.
(a) The Board has disregarded entirely the evidence that a great number of persons refused to sign the Petition in the Cafeteria. That evidence is certainly inconsistent with the conclusion reached by the Board as to the "probable perceptions" and what was "likely" in the minds of the persons who signed a statement of desire (paragraph 39).
(b) The Board has drawn a conclusion that the entire Petition was involuntary in the absence of any cogent evidence that persons who signed the Petition in the cafeteria perceived a management involvement. It is submitted that the Board's conclusions in that respect should be based upon fact, not surmise and further that the application should be declined because the cafeteria was "inappropriate".
(c) The Board has disregarded entirely the evidence of the employees relating to their apprehension with respect to job security as the motivating factor behind a desire to rid themselves of a trade union which, by its conduct, created and confirmed the reason for such apprehension.
The Board has seized upon a few alleged frailties in the Petition evidence in the face of the cumulative impact of all of the evidence. It is submitted that the decision is inconsistent with a fair analysis of conduct of ordinary people attempting to terminate bargaining rights for a bargaining unit of over 400 people. The realties of the situation are such that there has to be some latitude in connection with the observance of the "ususal rules" that the Board has applied in cases of this magnitude. (see Parker's Dye and Cleaners Limited [1974] OLRB Rep. December 859 and Northern Telecom Limited [1979] OLRB Rep. April 330).
The fact that another trade union is waiting in the wings" should not have any impact on the Board's decision. The test is the true and voluntary wishes of the employees affected and it is submitted that the Board should not be more favourably disposed to termination applications brought for the purposes of circumventing any tacit "anti-raiding" pacts.
The impact of the Board's decision is once again to equate the tests applied to petitions in certification and termination cases when the facts giving rise to petitions in these kinds of cases are radically different. This decision therefore constitutes a reversal in a trend of Board decisions where the Board appeared to be becoming more understanding of the realities when the employees unwittingly have violated any of the "usual rules" in termination cases. The test, after all, relates to a determination of the true and voluntary wishes of the employees, not as to whether or not they have broken any of the "usual rules".
The Board drew inference unfavourably to the petitioners on account of their failure to call certain Reply evidence. The petitioners were not represented by counsel and it is submitted that such a legalistic approach should not have been used upon the objecting employees. It is submitted that the "forgotten people" are going to become even more forgotten if the Board, as a forum is not open to them. Could any reasonable working person consider this decision fair, particularly in the light of the Board's acknowledgement that the employees may no longer want the respondent to represent them?
Under all of the circumstances, the objecting employees would ask the Board to reconsider its decision for the reasons aforesaid and, if the Board is not disposed to reconsidering its decision in its totality, the objecting employees would ask the Board to consider discounting those signatures on the Petition gathered in circumstances that the Board, according to its enunciated criteria, have found not to be "voluntary".
The Board has now reviewed the applicant's request for reconsideration, together with the comments of the parties thereon. The Board finds nothing contained in the grounds for reconsideration which was not before the Board and considered by it prior to rendering its decision of December 23, 1980, and accordingly finds no basis on which to vary or revoke that original decision. While the Board sees no merit or necessity in repeating at length the reasons for its conclusions contained in the original decision, the Board, in the circumstances of this case, is prepared to comment briefly on some of the submissions and misapprehensions contained in the request for reconsideration.
It must be recognized that nowhere in The Labour Relations Act of this province is the Labour Board granted a general power in representation matters to resort to a Board-supervised vote as an aid in resolving a question of employee wishes (compare, for example, the British Columbia Labour Code, R.S.B.C. 1979, c.212, s.43(l), s.52(2)). The powers of our own Board are granted in specific terms, and in, for example, an application for a declaration terminating bargaining rights, the requirements of section 49(3) must be met. Section 49(3), once again, provides:
Upon an application under subsection 1 or 2, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such lime as is determined under clause j of subsection 2 of section 92 that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
(emphasis added)
It is not sufficient that the background or history of the application raises, in general terms, a "question of representation", as that term is used, for example, in the United States' National Labour Relations Act (1935), P.L. 198, 74th Congress, as amended, section 9(c)(l)(although a prima facie showing of 30 per cent support for an application is still required even under the Act). The Board did not, as the submissions of the applicant and the intervener employer infer, fail to take into account in arriving at its original decision, either the history of this matter, including the profile of the strike, or the conduct of the respondent trade union itself, in particular in choosing, as a part of the economic sanctions available to it, to openly endeavour to divert business away from the employer. All of this assists the Board in assessing the sincerity of the petitioners who testified before it, as well as inferring the probable motivation of the remaining employees who do not appear before it, when such employees have been asked to sign the supporting petition in circumstances which are at least ambiguous.
The circumstances in the present case, however, were not ambiguous. The clear majority of signatures were obtained in the cafeteria, where both managerial and non-managerial persons eat their lunch, often at the same table. From the evidence it is clear that each of the petitioners, like Mrs. Ali, were highly visible and would attract attention when circulating from table to table in the cafeteria to solicit signatures. The act of signing is itself an overt act, requiring more than mere dialogue, and an individual employee's decision to sign or not to sign is readily discernible by anyone seated close enough to observe the employee's actions. Unlike the vast majority of cases which come before it, the Board in this case was not called upon to engage in a process of inductive reasoning as to whether employees would or would not themselves have inferred that their decision to sign or not to sign an anti-union petition would probably be communicated to members of management: employees in this case were being asked to sign the petition in circumstances in which members of management could see whether they were signing.
The Board in its initial decision made it clear that it found, in the context of all of the evidence and full history of this matter, nothing that was culpable in the conduct of the employer itself. But it would be naive, at the same time, to regard the intervener as simply a benign public employer, essentially neutral in its views toward the trade union with whom it was dealing. Without losing sight of the role of the respondent in this affair, the intervener, like employers in the private sector, had exercised its right to endure a prolonged strike (and other sanctions) rather than enter into a first agreement which contained the kind of Union Security clause ultimately legislated by Bill 89. The only relevance of this to the present application is to leave little doubt that the employees themselves would perceive the intervener as a great deal less than neutral in its feelings about the respondent union. The atmosphere, after months of continuing economic conflict, was charged in the extreme. In spite of the size of the unit, the petitioners had a responsibility to their fellow employees not to place them in the position of being asked to sign the petition in the presence of supervisors. Notwithstanding the protestations of the petitioners and of Mrs. Ali in particular, the evidence relating to the cafeteria, and the evidence of the supervisor, Mrs. Holmes, makes it clear that the petitioners paid limited heed to that responsibility. The evidence of Mrs. Holmes was directly contradictory in this regard to the position maintained by Mrs. Ali before the Board, and there was no suggestion that the petitioner representatives, who were an extremely intelligent and capable group, misunderstood the opportunity to call reply evidence. It is no answer to the Board's concerns to observe that a certain number of employees actually refused to sign the petition in the cafeteria. There may always be a number of employees so strongly supportive of the union that they will refuse to sign a petition no matter what the circumstances in which it is presented. The question the Board must ask itself is how many of the employees who did sign the petition would have done so without the distorting circumstance of supervisors being present at the time. The Board has no way of knowing the answer to this. Whatever may have been the wishes of the other employees at the time, the circumstances in which they were asked to sign the petition made it impossible for the Board to make a finding that the act of signing represented a voluntary expression on the part of 45 per cent of the employees in the unit, as the Act requires the Board to do.
Mr. Koran's alternative submission requests the Board to simply discount those signatures which the Board has not been satisfied were "voluntary". Given the number of signatures collected in the cafeteria, this approach, for the reasons given in the paragraph above, is of no assistance to the petitioners. In addition, the Board would then be required to assess the impact of the other factors set out in paragraphs 37, 38 and 39 of the original decision on employees' perception of management involvement in the petition as a whole. Given Mrs. Ali's ultimate indiscretion of spending an entire day in the cafeteria gathering signatures on the petition, this would not be a fruitful inquiry for the petitioners. As the Board stated in paragraph 39 of its decision:
Any doubts which employees may have had, based on her other petitioning activities, as to Mrs. Ali's connection to management would likely have been dispelled by that indiscretion, and this occurred early in the period of circulation.
The Board, in conclusion, approached the evidence with all of the latitude that a termination (as opposed to certification) application and the circumstances of this particular case demanded. To find that the petition relied upon represented a "voluntary" expression by 45 per cent of the employees, in the circumstances in which they signed, would have required more than "some latitude" on the part of the Board; it would have required the Board essentially to ignore the facts established by the many days of evidence. Apart from the Board's statutory mandate, there are other persons equally interested in this application besides the petitioners, and the Board has neither cause not justification to go this far.
The request for reconsideration is dismissed.
DECISION OF BOARD MEMBER J. D. BELL;
My own view of this matter remains as set out in my dissent of December 23, 1980.