[1981] OLRB Rep. June 791
0422-81-R United Food and Commercial Workers International Union, Local 175, Applicant, v. Thorold IGA Market, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Douglas J. Wray and Frank G. Kelly for the applicant; R. A. Werry and J. Pachereva for the respondent; Tony Tirabassi for the objectors.
DECISION OF THE BOARD; June 23, 1981
The name of the respondent is amended to read: "Thorold IGA Market".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in The Municipality of Thorold, Ontario, save and except manager, persons above the rank of manager, meat department employees, persons regularly employed for not more than 24 hours per week, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
The applicant filed membership evidence on behalf of 9 of the 14 employees in the bargaining unit on the date of making the application. There was also a timely statement filed in opposition to this application, and that statement was signed by two of the employees who signed cards in the applicant. If voluntary, the petition would therefore reduce the applicant's unequivocal membership position below 55%, and normally cause the Board to direct the taking of a representation vote. There was, however, a statement subsequently filed by one of the two relevant signatories to the petition, revoking his signature on the petition and reaffirming his desire to be represented by the applicant. The statement was in the following form:
To: The Ontario Labour Relations Board
Re: Local 175, United Food & Commercial Workers International
Union, AFL-CIO-CLC, and
Thorold I.G.A
I, (Deleted) , hereby state that I am a member of Local Union 175, United Food & Commercial Workers International Union. I joined this union on May 25th . I signed and paid one dollar initiation fee.
On June 3rd I signed a petition against the union s application for certification. I did so because I thought my job was in jeopardy. I still wish to be a member of Local Union 175, and I wish to be represented by this union in collective bargaining with my employer, Thorold I.G.A.
Please disregard my signature on the petition filed in opposition to the union's application.
I hereby designate Frank Kelly to appear before the Board on my behalf at the hearing in this matter.
June 3rd (Deleted)
(Date) (Signature) (Deleted) (Address)
Witness: ______________________________________
If such statements of revocation are found to be voluntary, the Board's practice is to discount the prior act of signing a petition in opposition to the union. In the present case, the Board indicated that if the single statement of revocation were voluntary, the remaining overlapping signature on the petition would no longer be material, as it could not in any event reduce the applicant's unequivocal membership position below 55%: the applicant would still represent 8 of the 14 employees in the unit.
The Board accordingly directed that it would first inquire into the voluntariness of the statement of revocation and reaffirmation. The evidence in that regard was given by Frank Kelly, an organizer with the applicant who has been employed in that position for a period of three years. Mr. Kelly was responsible for signing up employees in the present campaign, and received word alter the application went in that a petition had been circulated against the applicant. Mr. Kelly attended at the home of the employee here in question a few days later and, after bringing up the petition, asked him why he had signed it. The employee answered "that he had given the thing some thought, that a guy's got to look after himself, and that he relies on his job". The employee also added: "Why pay union dues?" Mr. Kelly reminded him that the night the employees had signed cards, he had been a bit of a leader by being first, and asked him to fulfill the commitment he had made that night. The employee went on to mention that there was no opportunity for him to become a department head in another store that the owner was going to buy, and added that he had been under tremendous pressure at the store. The employee's father was present and said that his son should do what he feels is right. The employee then read over the letter of revocation which Mr. Kelly presented to him, and signed it.
Mr. Kelly conceded that the letter of revocation placed before the employee in question was a standard form that Mr. Kelly carried in his briefcase. He conceded that he had had no prior discussion with the employee before showing him the letter, and no specific discussion of him losing his job prior to signing. From this the respondent argues that the document is untrue on its face, and that the whole document ought therefore to be disregarded.
This is not the first time a letter of revocation has been received by the Board in this form, although there does not appear to have been any prior challenge to its use. The document is typed with blanks to be filled in for the specific occasion, and there clearly is no attempt on the part of the applicant to mislead the Board into thinking it is receiving anything but a standard form document. Nevertheless, the Board has some concern over a standard form which purports to ascribe a particular motivation to an employee, particularly in terms as colourable as: "I did so because I thought my job was in jeopardy". The Board noted at the hearing that there might well be circumstances in which the practice of an applicant appearing in effect to put words in an employee's mouth might weigh against the applicant on evidentiary matters which are in dispute.
The issue before the Board here is the voluntariness of the act of revoking the employee's prior signature on the petition. Having regard to Rule 48 of the regulations and considerations of confidentiality, the Board's normal practice, in these matters, be it regarding original evidence of membership, evidence in opposition (petitions), or evidence of reaffirmation, is to accept written evidence which meets its criteria, and not to examine behind the face of that written evidence. The written evidence, in other words, must speak for itself (see, e.g., PRC Chemicals, [1980] OLRB Rep. May 749). Counsel for the respondent argues, however, that the Board must and does go behind the document where the statement on its face has been shown to be untrue. Such is not the case here, however. The most that can be said is that the evidence demonstrates that Mr. Kelly, at the time he initially presented the letter to the employee, did not know whether the statements contained therein were true or not. It remained for the employee to read the letter and decide whether he agreed with its contents or not. While the employee's motivation is not in issue here, the Board notes that it was open to the employee, if he disagreed with the statement concerning the petition and his job, to strike that statement out, or refuse to sign it at all. Given the opportunity to read the document, however, in circumstances not otherwise impairing the employee's freedom of choice, the Board takes an employee who subsequently signs the document to agree with its contents. There is no evidence to indicate that the statement, although prepared in advance, was not, as it turned out, true, in the case of this particular employee who signed. The Board accordingly finds no basis for refusing to take the letter at face value, insofar as a simple reaffirmation is concerned, and, as stated at the hearing, discounts as a result that employee's signature on the petition.
The Board is satisfied on the basis of all the evidence before it 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 June 4, 1981, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.