United Steelworkers of America v. Baltimore Aircoil Interamerican Corporation, 1982 CanLII 1013

[1982] OLRB Rep. October 1387

1447-80-R United Steelworkers of America, Applicant, v. Baltimore Aircoil Interamerican Corporation, Respondent, v. Group of Employees, Objectors

BEFORE: George W. Adams, Q.C., Chairman, and Board Members Gordon Bourne and Henry Kobryn.

APPEARANCES: Brian Shell and Ron Varley for the applicant; Michael Gordon, Thomas Stefanik and Richard Hampton for the respondent; and Reginald Leyte, Edward Davis and Joseph Lamoureux for the Group of Employees.

DECISION OF GEORGE W. ADAMS, Q.C., AND HENRY KOBRYN: October 22, 1982

1. This is an application for certification. It was filed on October 9th, 1980 and given a terminal date of October 23rd, 1980. The matter came on for hearing on October 31st, 1980 and by decision dated November 25th, 1980 a certificate was issued to the applicant for a bargaining unit described as "All employees of the respondent in the Town of Halton Hills, save and except forepersons, persons above the rank of foreperson, office and sales staff and students employed during the school vacation period". In arriving at that decision the Board had been confronted with a statement of desire in opposition to the application signed by a number of employees in the bargaining unit. Three of the employees who signed the statement had previously become members of the applicant union. The applicant had filed evidence of membership on behalf of thirty of the fifty-four employees in the bargaining unit and, within the terminal date, filed a further document signed by a number of employees reaffirming their membership in the applicant and repudiating their signatures on the statement of desire. Among those signing this document or counter-petition were the three union members who had earlier signed the statement of desire in opposition to the applicant.

2. The Board heard evidence concerning the circumstances under which the document reaffirming membership in the applicant came to be signed and was satisfied it was voluntarily executed by those signing it. In the circumstances, the Board indicated it was prepared to disregard the signatures of the three union members on the statement of desire in opposition to the application. Having arrived at this decision, the Board accepted the thirty applications for membership filed by the applicant on behalf of bargaining unit employees as an accurate expression of the wishes of those thirty employees. Thus, because the trade union had support of more than fifty-five percent of the employees in the bargaining unit, the Board concluded that the applicant was entitled to automatic certification unless the Board decided to exercise its discretion under section 7(3) of the Act to direct the taking of a representation vote and the Board concluded that no basis, in its view, existed to cause it to direct the taking of a vote. A certificate was therefore issued to the applicant.

3. The respondent employer challenged that decision in the Divisional Court of the Supreme Court of Ontario and was joined in that challenge by a group of objecting employees. The basis to the challenge was the Board's refusal to inquire into the origination and circulation of the statement of desire in opposition to the application after having found that the so-called "counter-petition" filed by the applicant confirming the membership and repudiating the three relevant signatures on the statement of desire was voluntary. In quashing the Board's decision the Divisional Court wrote:

In this case had there been no counter-petition it would obviously have been appropriate for the Board to test the petition in accordance with the Rule for it threw the Union's claim to 30 members open to question. It was clearly the existence of the counter-petition that led the Board to refrain from making the inquiry. The Board simply accepted the evidence of Mr. Varley. The constraints which the certification process places upon the calling of evidence, constraints intended to preserve the anonymity of Union members, left counsel for the objectors at the hearing in an awkward situation. He could not call evidence to counter Mr. Varley's. His only prospect of calling into question the effectiveness of the counter-petition was to balance the process of the creation of the petition. That the Board would not let him do.

With respect, we think the Board erred. The mere fact that three persons had apparently been of three minds about membership, first, to join, second to repudiate, third to repudiate the repudiation, might, in our view, have been sufficient evidence of confusion to justify a vote being ordered or, at least, an inquiry into all the circumstances of the latter two changes of mind, the first, of course, being beyond overt inquiry. In addition, however, there was clear evidence that peer-pressure might have been an element in the creation of the counter-petition. If that had not induced the Board to order a vote it might, at least, have led it to be curious about the presence or absence of such influences in respect of the petition.

It is not that the Board refused to exercise its discretion to order a vote that is under attack, it is its exercise of that discretion in the absence of evidence relevant to it.

We are of opininon that the Board erred and that its error was not merely one of the admission of evidence and therefore within jurisdiction. The difference between that kind of error and an error of jurisdiction has been canvassed in many decisions, one of the most recent of which was that of the Divisional Court in Re Marques et al. v. Dylex Ltd. et al. 1977 CanLII 1157 (ON HCJ), 81 D.L.R. (3d) 554. The effect of those decisions which include, notably, Re Ontario Labour Relations Board: Toronto Newspaper Guild v. Globe Publishing Co., 1953 CanLII 10 (SCC), [1953] 2 S.C.R. 18 and R. v. Marsham, [1892] 1 Q.B. 371, is that where the wrongful refusal was in respect of the very subject matter into which the tribunal was bound to inquire the error was a jurisdictional error. We have already said that in our opinion the Board should not have refused evidence concerning membership since that was the very subject it was obliged to decide. Its refusal, therefore, is an error of jurisdction.

Viewing the matter from another vantage point, the refusal was a denial of jurisdiction and a denial of natural justice in light of the Board's obligation, under section 91(12) of the Act to give the parties a full opportunity to be heard: : see Re Fisher et al. and Hotels, Clubs, Restaurants, Tavern Employees' Union, Local 261 et al. (1980) 1980 CanLII 1882 (ON HCJ), 28 O.R. (2d) 462.

If this were an isolated incident it might not have been thought appropriate for the intervetion of this Court but since the Board, according to the notes, was apparently following an established practice in refusing to hear evidence of a petition where it accepted a counter-petition the situation involves a serious error of law that requires correction: see Re Hughes Boat Works Inc. and International Union, United Automobile, Aerospace, Agricultural and Implement Workers of America (UAW) Local 1620, et al. 1979 CanLII 1853 (ON HCJ), 26 O.R. (2d) 420 and Re Tandy Electronics Ltd. and United Steelworkers of America et al., 1980 CanLII 1738 (ON HCJ), 30 OR. (2d) 29,

5. The Court of Appeal dismissed an appeal from the decision of the Divisional Court and Mr. Justice Jessup endorsed the Record in the following manner:

While the Board exercises a very broad discretion in ordering a certification vote or not, in our view in this case it denied natural justice in refusing to hear the evidence sought to be adduced by the objectors without knowing what the evidence was and such denial went to jurisdiction. In the result the appeal is dismissed with costs.

6. The decision of the Court of Appeal was dated December 16th, 1981. The order of the Divisional Court affirmed by the Court of Appeal remitted "the application for certification and all it comprises, less the decision and certificate, to another panel of the Board for consideration de novo in the light of this decision". Accordingly, the matter returned for hearing before this panel of the Board on September 8th, 1982.

7. The Board finds the applicant is a trade union within the meaning of section 1(l)(n) of the Labour Relations Act.

8. The only issue separating the parties with respect to the description of the bargaining unit is its geographic scope. The applicant submits that the unit should be described in terms of Halton Hills, whereas the respondent contends that the term Georgetown should be employed. Pursuant to section 2(l)(d) of the Regional Municipality of Halton Act, 1973 the Town of Georgetown became part of a new municipality known as the Town of North Halton, which name was subsequently changed to the Town of Halton Hills by force of Ontario Regulation that is 0. Reg. 622/72. The Board's general practice is to describe bargaining units by reference to the relevant municipality, and we propose to follow this policy in the instant case. Accordingly, the bargaining unit will be described in terms of the Town of Halton Hills.

9. Having regard to the Board's determination set out above and the agreement of the parties with respect to all issues relevant to the description of the bargaining unit, the Board finds that all employees of the respondent in the Town of Halton Hills, save and except forepersons, person above the rank of foreperson, office and sales staff and students employed during the school vacation period constitute a unit of employees of the respondent appropriate for collective bargaining.

10. On the date of making of the application, there were fifty-four employees in the bargaining unit. By the terminal date, the applicant filed for thirty employees combination applications for membership in the United Steelworkers of America and receipts for the payment of $1.00 on account of initiation fees paid to that trade union. Each membership card bears the signature of the applicant employee and the signature of the sole collector, Ronald Varley, together with the date of application. Also filed was the required Declaration Concerning Membership Documents (Form 9) signed by Mr. Gerry Reads of the union declaring the propriety of the documentary evidence of membership filed.

11. There was filed a statement of desire in opposition to the application signed by a number of employees in the bargaining unit and filed with the Board before the terminal date. Three of the employees who signed the statement had previously become members of the applicant union. The statement of desire contained twenty-six signatures in total together with witness signatures and indications of the location at which and date on which each subscribing signature was obtained. The preamble to the statement of desire reads:

We the undersigned employees of Baltimore Aircoil and P.A.C.O. Pumps, do not wish to be represented by the United Steelworkers.

12. The Board also received, on the terminal date, a document signed by thirty employees reaffirming their membership in the applicant and repudiating their signatures on the statement of desire. Among those signing this document were the three union members who had earlier signed the statement of desire in opposition to the application. The preamble to this document reads:

PETITION FORM TO THE O.L.R.B.

THE REGISTRAR

ONTARIO LABOUR RELATIONS BOARD

400 UNIVERSITY AVE.,

TORONTO

DEAR SIR:

RE FILE #1447-80-R

I/WE THE UNDERSIGNED HEBY REAFFIRM MY/OUR MEMBERSHIP IN THE UNITED STEELWORKERS OF AMERICA AND I/WE REPUDIATE MY/OUR SIGNATURE ON A PETITION AGAINST THE UNION.

SIGNATURE DATE WITNESS

13. The respondent company objected to the Board hearing any evidence with respect to the document reaffirming membership in the applicant on the basis that the Rules of Procedure of the Board nowhere contemplate such documents and that therefore they can have no legal affect. The Board reserved its ruling on this submission and heard evidence concerning the circumstances under which the document reaffirming membership in the applicant came to be signed. The applicant trade union at the conclusion of the tendering of this evidence submitted that the Board need not hear evidence concerning the origination and circulation of the statement of desire in that the applicant was prepared to make submissions on the basis that both the statement of desire and the document reaffirming membership in the applicant were voluntary expressions of employee wishes at the time they were executed. The objectors seemed prepared to accept this approach. However, having regard to the fact that the objectors were not represented by legal counsel and to certain comments of the Divisonal Court in its decision in this matter, the Board agreed with the suggestions of the employer's counsel that the origination and circulation of the statement of desire ought also to be enquired into. A full review of the evidence with respect to each document will be undertaken.

The Counter-Petition

14. Mr. Ron Varley was the primary organizer for the applicant trade union. He is employed as a meat cutter with Dominion Stores in Windsor and is represented by the applicant in his employment there. He has been a local trade union president for fourteen of his seventeen years with Dominion Stores and has been Vice-President of the Windsor District Labour Council. He had been working for the Steelworkers on a part-time basis in the capacity of organizer for about a year and a half prior to the instant organizing campaign and in that time had been involved in three previous organizing campaigns. His previous experience also includes organizer for a political party in five different provinces. He described the origination and circulation of what, in Board practice, has come to be known as the counter-petition. He testified that the form used by himself and his colleague, Everett Roberts, is a standard form counter-petition available from the United Steelworkers Union of America. He said he obtained copies of the form from the trade union's district office on Lombard Street. He testified that all of the people who had signed membership cards in the applicant were invited to a meeting to be held on October 21st, 1980. They were invited by telephone and told that the organizers (Varley and Roberts) would be updating them on what was to happen at the Ontario Labour Relations Board. The meeting was convened at a motel located on the outskirts of Georgetown on Highway #7. The meeting began at 7:00 P.M. and Varley chaired the meeting. He talked about the application, what procedures would be followed, what was the applicant's hopes, and what would follow if the application was successful in terms of collective bargaining. Questions were then entertained from the floor. It has been the practice of Roberts and himself to rely on a counter-petition in that it cannot harm an application and can "neutralize" any statement of desire or employee petition which may have been circulated and of which they might have no knowledge. Indeed, in this particular case Varley and Roberts had been informed of the circulation of an employee petition.

15. Varley explained the significance of any overlap between membership cards and signatures on the statement of desire. He explained that one possible way to respond to the effect or signatures on a statement of desire was by the circulation and adoption of a counter-petition which would, in effect, "nullify" any overlap between the statement of desire or petition and the applications for membership in the applicant. Neither he nor Roberts asked the employees present who had signed the petition. Everyone but one employee who had executed membership evidence attended the meeting. Varley admitted that he and Roberts had received some information suggesting who may have signed the statement of desire. Indeed, two people had volunteered to Varley that they signed this petition to prevent the company from knowing they had supported the trade union and were relieved to know there was a way to show they were still committed to the applicant trade union.

16. The motel room was of ordinary size and, thus, was very crowded for the meeting. Varley asked the people present who were interested in signing the counter-petition to come forward and execute the document. The result was that everyone lined up and signed three pages of a commonly worded petition affirming membership in the United Steelworkers of America. All signatures were dated October 21st, 1980 and witnessed by Mr. Varley.

17. Twenty-nine of the thirty signatures were obtained in this way. The thirtieth signature was that of an employee who had been ill and unable to attend the meeting. Varley and Roberts after the meeting attended at his home and obtained his signature as described below. Varley denied that any of the employees were told that they "had" to attend the meeting or that employee signatures on the counter-petition constituted anything other than voluntary acts. He testified that anyone in the room was free to leave although he admitted that a refusal to sign would have been known to both him and Roberts.

18. The one employee who did not attend the meeting had advised Varley by telephone that he was not feeling well and would not be there. However, he asked that Varley and Roberts "fill him in afterwards". In attending at this person's house Varley used a blank counter-petition form so the person would not be able to examine all the names of those who had already signed. His wife came to the door and indicated that her husband was not feeling well. Varley told her the purpose of the visit and that her husband was expecting them. The man was in slippers and a dressing gown. Varley indicated that he looked as if he had not been feeling well. Varley brought him up to date on the earlier meeting with the other employees. According to Varley, this individual knew about the petition that had been circulated against the union and Varley advised him about the purpose of a counter-petition and asked if he wanted to sign it. The employee indicated that he did. The employee's wife made coffee for everyone. Roberts witnessed the employee's signature and the visit concluded after some small talk and the consumption of the coffee. Varley suspected that this person had signed the statement of desire although this was never indicated to Varley and Roberts. Varley denied asking the employee whether he had signed the statement of desire or telling him that his signature would make the difference to the applicant and those supporting it. He said that the employee was told that his signature was as important as any other signature but they did not make his signature any more critcial than anyone else's. On cross-examination he indicated that his recollection of this specific conversation might be faulty because of the passage of time and that he may have indicated that the employee's signature was critical.

19. The meeting at the motel ended somewhere around 8:00 p.m. and the visit at the employee's home was somewhere in the vicinity of 8:30 to 8:45 p.m.

20. In order to understand the policy behind the Steelworkers standard form counter-petition, the Board asked for Mr. Varley's opinion on why employees would sign a membership card, then a statement of desire, and then a counter-statement reaffirming their support for a trade union, all within a relatively short period of time. Varley believed that many people signed a petition or statement of desire out of fear that an employer will come to know of their support for a trade union should they refuse to sign the document and that the counter-petition provides these employees with an opportunity to confirm their true wishes. Indeed, he began by giving the example of at least two employees in the instant matter who indicated to him that this was their motivation. On cross-examination he testified that the petitions he had seen over his experience had been "company petitions". On the other hand, he agreed with the respondent's counsel that "at least in the old days" people may have signed counter-petitions out of fear. However, he could see no basis for such fear in the instant case and testified that he did not believe the last person who signed did so out of pressure in that he was a former trade union steward and member of the Steelworkers in another plant.

21. Everett Roberts testified and essentially confirmed Mr. Varley's description of events surrounding the counter-petition. He is employed with Peelle Company Ltd., in Malton, Ontario and is a member of the Steelworkers Union. He has been president of his local trade union for the past three years. He was involved in the organizing campaign at the respondent company and worked under the direction of Ron Varley and a Mary Shane. Apparently Mary Shane became ill during the campaign and subsequently passed away. This was his first organizing campaign. He produced a check list of considerations that Varley had written out for him to relate to employees he was calling to notify them of the October 21st meeting. The check list is numbered 1 to 5 and took the following form:

(1) Important decision to be made;

(2) Only those who signed cards present;

(3) Urgent they be there;

(4) Get indication if coming; and

(5) Do not mention meeting at work - keep it a secret.

The postscript on the check list indicates "also make them feel responsible for being there!". Roberts had this check list in front of him as he spoke to each employee on the telephone. Only those who had signed cards were invited and telephoned. This was the same check list that was used to summon employees to an October 6th meeting. When the counter-petition was signed he was sitting at a table with Ron Varley and the employees present lined up to sign the document. He saw Varley sign as a witness in each case. Neither he nor Varley attempted to keep track of who was leaving and who had signed. It was only after they had obtained the signatures of those at the meeting that they then visited the employee who was at home and too sick to attend. Roberts confirmed Vailey's description of what was said at the employee's home. He and Varley suspected there were three "overlaps" but they had no definite knowledge of this. They were simply going on what certain persons had told them. Indeed, Roberts indicated that "to this day" he did not know for a fact who had signed both membership cards and the statement of desire. He confirmed that it is the practice of the United Steelworkers to circulate a counter-petition 'just in case" a petition or statement of desire is going around. However, he denied that it is ever the practice to sign both membership cards and a counter-petition at the same time. The counter-petition appears to be left to the concluding meeting of every organizing campaign as close to the terminal date as possible. He agreed that the employee who was visited was told about the nature of a counter-petition and advised that "if the numbers were not there they would be into a vote situation”. He denied that either Varely or he told the employee that his decision could decide the whole issue. He said that the employee did not advise them that he had signed a petition although Roberts had his own suspicions that the employee had done so.

The Petition

22. Mr. Richard Hampton, General Manager of the Georgetown plant for the last fifteen years, testified that he was aware of a union organizing attempt in the fall of 1980. He said he was aware of this because of leaflets being handed out at the entrance to the plant. He also indicated that there were rumours within the plant. He said it first came to his attention towards the end of September of 1980. His first reaction, according to his testimony, was to retain legal counsel to discuss the matter. From these discussions he was given to understand that he could do nothing and that he had to take a "hands-off position" with regard to the whole matter. He testified that at about this time or during the first week of October two employees, a Mr. Leyte and a Mr. Lamoureux, came to see him in the morning. He testified that they told him there was a union organizing attempt over which they were disturbed. They asked what they could do. He said he told them that to the best of his knowledge he could not speak to them about it and that the only thing to do was to go to a lawyer of their own choosing who could perhaps advise them. He said they left obviously disturbed at the situation. He then called his lawyer to confirm what he already knew and was told that he could advise the employees to contact the Registrar of the O.L.R.B. in an attempt to get a labour lawyer and that it was also proper for him to provide the employees with a list of labour lawyers with experience in the area. Thereafter, his solicitor delivered the following letter to him by courier. The letter is dated October 1st, 1980 and reads:

PERSONAL & CONFIDENTIAL

Richard J. Hampton, Esq.,

General Manager,

Baltimore Aircoil of Canada

35 Sinclair Avenue,

Georgetown, Ontario

L7G 1J3

Dear Mr. Hampton:

You have indicated to me that you have been approached by one or more of your employees who have asked you if you can recommend to them the name of a lawyer who might act for them in terms of proceedings before the Ontario Labour Relations Board or in relationship to matters arising out of an apparent organizing attempt at your plant in Georgetown.

You will recall that I advised you at the time that you could not give your employees any advice as to what they could or could not do in order to avoid being unionized and that it was improper for you to indicate to them any preferences that you might have on that subject.

You will further recall that I advised you that the only thing you could really do was to suggest to the employees that they contact:

"D. K. Aynsley, Esq.,

Registrar,

Ontario Labour Relations Board

400 University Avenue,

Toronto, Ontario

Telephone: 965-4151"

In the alternative it is not, in my view, improper for you to indicate to the employees that you are not able to give them advice and suggest that they retain counsel of their own choosing experienced in matters of this nature. You have indicated to me that you are unfamiliar with the names of any counsel who do this kind of work and I agreed to provide you with three names. The individuals in question, are as follows:

Michael G. Horan, Esq.,

Barrister and Solicitor,

Suite 401,

330 University Avenue,

Toronto, Ontario

M5G 1R9

Telephone: 598-2488

Hart Rossman, Esq.,

Barrister and Solicitor,

418 Richview Avenue,

Toronto, Ontario,

Telephone: 483-7574

Robin Cumine, Q.C.

Messrs, McLean, Lyons

Barristers and Solicitors,

Suite 372 Bay Street,

Toronto, Ontario

M5H 2X5

Telephone: 364-5371

In addition there is a most useful publication published by the Ministry of Labour entitled "A Guide to the Labour Relations Act". Copies of that publication are available, as I understand it, free of charge from the Ontario Labour Relations Board. I would suspect that the Registrar of the Board would be pleased to forward any of your employees a copy of that document should they request it.

I must reiterate, you cannot, in any circumstances, offer to assist your employees in opposition to the trade union nor should you allow yourself to be drawn into any conversations wherein you express an opinion or views which may indicate an "anti-union animus" on your part.

Should you have any questions arising out of the foregoing please do not hesitate to contact me.

Yours very truly,

Michael Gordon

23. Hampton testified that Mr. Leyte came back to see him later in that day and that he gave Mr. Leyte the names of the three lawyers contained in Exhibit 3. He confirmed to Leyte that he could have no involvement. He showed Leyte a copy of Exhibit 3 but did not give him a copy of the letter. He testified that to the best of his knowledge he did not talk to other employees about the union organizing attempt and if anyone tried to raise the matter with him he immediately closed the subject. He denied that he made any offer to Mr. Leyte with respect to absorbing the costs of retaining a lawyer. He testified that it was not unusual for employees to come to him and ask for help on a variety of matters in that he maintains an open-door policy. In fact, on one other occasion he had suggested that an employee see a lawyer with respect to a personal matter.

24. He testified that he did not keep track of what Mr. Leyte and his colleagues were doing and that he did not know that a lawyer had been retained until his attendance at the first meeting before the Board. He denied knowing that a statement of desire or petition was circulating in the plant although he admitted to knowing of rumours to this effect. On cross-examination he asserted that he tried to keep a hands-off position at all times and that he did not have discussions with employees or the workforce with respect to the company's position. He denied knowing that people were being approached by union organizers in September and did not recall issuing a letter to the workforce expressing the views of the company on the organizing drive until shown a copy of Exhibit 4. On reading the following document he agreed that it was a letter sent to all employees on or about September 24th, 1980. The letter reads:

Dear Fellow Employees:

As you may know, some employees have recently been contacted by a union organizer about signing a representative card. I want to remind you of the seriousness of signing such a card and restate my feelings about why a union is not necessary here.

Our plant has recently completed its 17th year in Georgetown. During these years our plant has grown and is providing you with job security and employment. This has occurred without the intervention of a union.

Union organizers are not familiar to many of you. As you will recall, a little over a year ago a union tried to organize our plant. However, you as employees chose to continue the existing relationship with the company without outside representation. You voted "NO" to the union. I feel this reflects the fact that you have experienced good working conditions and received fair and competitive wages and benefits. We are also aware that improvements can almost always be made. It is and will be our policy to continue to maintain wages, fringe benefits and working conditions which are equal to or better than those in competitive businesses and make improvement where and when possible.

We respect the rights of our employees to join any organization, including a union. On this point, we wish to be very clear. Employees are entitled to join a union and likewise employees are also entitled not to join a union. No person representing a union or management is entitled to interfere with your rights in making that decision.

You may hear a great deal as you did with the previous union about what the unions say they can do for you. However, membership in a union also involves obligations. If you are considering signing a union card, you should carefully read the union's constitution and by‑laws so you will understand what signing a union card means. For example, what are the initiation fees and dues? Are there any special assessments? Will joining a union involve you in fines, strikes, or picketing activities?

The union may promise you things such as improved wages and job security. Promises are easily made. However, any improvements promised by a union must be agreed on by the company. No union can guarantee anyone a job. Job security comes from a growing and healthy company.

You may be left with the impression that signing a union card is only the first step and that the vote will take place later. Be aware - if more than 55% of the eligible employees sign cards, the union is entitled to bargain for you automatically without a vote. Therefore, it is very important for you to be well informed before you sign a card.

The company is concerned about your welfare. You don't need to give up any freedom to unions and pay dues in order to retain your job security and good wages and benefits. It is our desire to remain non-union and deal with you as individuals, not through a third party.

We are not anti-union. We are pro-employees and have been for the 42 years that BAC has been in business. Unions have tried to organize other BAC plants in North America. In every instance, BAC employees have rejected the unions' attempts. I trust that all of our employees will give serious consideration to this important decision about signing a union card. Feel free to contact me if you need any further information.

Sincerely,

R.J. Hampton

General Manager

25. He testified that he issued this letter after learning of well substantiated rumours about a trade union organizing drive. But, he denied knowing of the circulation of a petition and denied instructing his staff with respect to the origination and circulation of the petition. He is on the shop floor three and four times a week and often talks with hourly rated employees and with his supervisors. Exhibit 4 could have been in response to information received on one of his shop floor outings. He could not recall whether his letter of September 25th also went to his supervisory staff, although he did not believe it did. He did speak to his supervisors about what they could and could not do in the context of an organizing drive and indicated that their position was to be a hands-off one. However, he agreed that they would be aware of the company's position being one of opposition to trade unions. BAC has some 1500 employees in North America and is a subsidiary of Merk Inc., a large American corporation. The head office of BAC is in Rahway, New Jersey.

26. Reginald Leyte was one of the objecting employees and testified in support of the origination and circulation of the statement of desire. He is employed by the respondent company in shipping and receiving and has been with the company for fourteen years. He testified that the United Steelworkers of America were signing up people to be represented and so he, Edward Davis and Joe Lamoureux decided "to get a petition going against the union". Around the end of September or early October before any posting of material from the Ontario Labour Relations Board had occurred, he and Joe Lamoureux went to the Plant Manager to see what they could do. The employees believed they needed help. Leyte recalled Mr. Hampton told him that although he could not talk to them about the situation he would check with his solicitor. Shortly after Mr. Hampton gave him the names of three lawyers and he picked one of them, a Mr. Michael Horan, whose name appears on the top of the list of solicitors on Exhibit 3, a solicitor who often acts before this Board on behalf of objecting employees. M. Leyte testified that he got in contact with Mr. Horan on approximately October 2nd, 1980 and was told that there was nothing that could be done until the "Notice to Employees" went up from the Labour Relations Board and that as soon as that notice was posted he should call Mr. Horan. Soon after, a "green sheet" from the Board went up on notice boards and he called Mr. Horan who gave him the exact heading for the petitioners' statement of desire which was to be circulated.

27. Mr. Leyte was working days. He obtained the first three signatures including his own at coffee break on October 15th between 3:00 and 3:15 p.m. Employees were outside the plant on the lawn and he told them that the union was trying to organize and that if he obtained enough signatures on the petition it would cause a vote to be held in the shop. The employees were then asked whether they wanted to sign the petition. He, Davis and Lamoureux then got together after work and commenced visiting other people at their homes. #4 was obtained on October 15th at the employee's home at about 6:00 p.m. Leyte said that they knew who had signed cards and who were not yet decided. The employee was told that the union was organizing and that they were taking up a petition. He repeated his remarks about the effect of a petition causing a representation vote. #5 was visited at his home about 10 minutes later. Leyte testified that while all three employees travelled from home to home only one got out of the car and spoke to the employee whose signature was being solicited. The person designated to approach the employee was usually the one who knew the employee best. #6 was obtained at approximately 6:20 or 6:25 p.m. #16 was obtained at the employee's home on October 16th at about 5:45 p.m. #17 was obtained at about 6:15 p.m. on October 16th. #19 was obtained at his home on October 19th at 7:00 p.m. Throughout this process Leyte and his colleagues shielded the names of those who had signed the petition from those whom they were approaching. In shielding the names, however, the preamble to the petition was also covered and therefore very few employees if any actually read the preamble. However, Leyte testified that the employees were all told about the significance of the petition and what was the affect of signing. #22 was obtained in the parking lot in a nearby plaza in Georgetown on October 16th. #23 was also obtained in the same parking lot on the same evening. Employees who signed up in the parking lot had been told to meet there after work. #24 was signed up in the parking lot on October 16th. On this occasion the employees in the parking lot met essentially as a group. #25 was signed up at home immediately after work on October 20th as was #26. When the process was completed and 26 signatures obtained, Leyte took the petition to his solicitor. Mr. Horan forwarded the document to the Board.

28. On cross-examination by the respondent company's counsel, Leyte testified that he asked Mr. Hampton for the names of lawyers because he knew that he and his colleagues could not handle it. He denied that any other kind of assitance was given to him by the company. He had no other discussion with Hampton about the organizing campaign and told no one in supervision nor in the management of the company what he, Davis and Lamoureux were doing. He denied receiving any lists of employees from the company and testified that he and his colleagues located and approached employees from memory. On cross-examination by the applicant's counsel, Leyte testified that most of the employees lived in the Georgetown, Orangeville, and Brampton areas. He said that between the three of them they knew where most of the employees lived. The addresses they did not know were obtained from other employees who they approached. He admitted that some employees who he approached asked how he knew what to do and he advised them that a lawyer had been retained and that the lawyer's name had been obtained from the plant manager. He said he may have told as many as ten employees this. In fact, someone went on to ask whether the lawyer knew what he was doing. He said he was not present when Davis and Lamoureux obtained their signatures because he was back in the car. He agreed that towards the end of September he walked around the plant and talked to employees about the organizing drive and the petition. Many times, however, employees came to him to talk about the situation. He did not recall ever showing the petition to employees while his supervisor or a foreman was about. He telephoned Mr. Horan because he was on the top of the list of lawyers provided by Mr. Hampton and at that time knew nothing about a petition or its effect. He said they told Mr. Hampton that they wanted to get help to know what to do and may have said they wanted "to fight the union". He denied that there was any mention of who would pay the lawyer's fee and how it was going to be paid. The fee remains unpaid. Leyte believed the employees knew what they were signing even though the preamble was covered because of what he told them. He could not recall any employee asking him whether Mr. Hampton was going to see the petition. He testified that people were approached on a friendly basis and that no pressure was imposed. When they asked the plant manager for help the plant manager said he would have to get in touch with his lawyer. After lunch he was then given the names of the three lawyers by the plant manager.

29. Joe Lamoureux, had been employed with the company for about a year and a half at the time. He and Mr. Leyte heard about the union and went to see Mr. Hampton to determine what they could do to counteract the drive. He testified that Hampton replied he could do nothing but he would get in touch with his lawyer and "that he would get us some help". In the afternoon he and Leyte went back to see Mr. Hampton and they were given a list of three lawyers. He said that after that everything was left up to Mr. Leyte. When Mr. Leyte was told by the lawyer to circulate the petition he, Mr. Davis and Mr. Leyte then started to circulate the petition. Mr. Lamoureux identified his signature as #15. He signed as a witness for #7, #8, #9, #10, #18, #20, and #21. #7 was obtained at that employee's home on October 15th at about 8:30 p.m. The employee was told that they were "running a petition around against the union and whether he was for or against". He said that when he approached these employees his colleagues remained in the car. #8 was approached the same day at his home as was #9 and #10. #18's signature was obtained on October 16th at about 10:00 p.m. at his home. #20 was obtained shortly thereafter that same evening as was #21. All of these employees live in the Georgetown area. He said that every employee he approached signed the document. He did not tell these people about the lawyer who was assisting them. On cross-examination by the applicant's counsel, it was apparent that the manner in which Mr. Lamoureux concealed the names of those who had signed the document also concealed the preamble. However, Mr. Lamoureux indicated that all of the employees he approached knew exactly what he was doing and the purpose for which he was requesting their signature. He agreed that he, Davis and Leyte had not discussed retaining a lawyer before going to see Mr. Hampton. He said that when Mr. Hampton gave them the list of lawyers was the first time the idea of retaining a lawyer came into his mind. He admitted that he had used a lawyer to purchase a house but that his wife had handled that and it had not occurred to him to seek advice from that lawyer. Mr. Lamoureux denied that there had been any discussion with Mr. Leyte about the lawyer getting paid or about who was responsible for paying the lawyer's fee. He said he did not know who was going to pay the fee of the lawyer; he had not seen the lawyer's account; and he had not been approached for a contribution in this respect. He testified that he and his colleagues did not have a list of employees' addresses and that they operated entirely on their own knowledge or on what other employees told them. He agreed that he and Mr. Davis and Mr. Leyte would know who signed the statement of desire and who refused to sign it. He testified that it was well known in the plant what he and his colleagues were doing. He denied that anyone asked whether Mr. Hampton was going to see the petition.

30. Mr. Davis has been employed by the respondent company for ten years. His signature was #2 on the document and he witnessed #11, #12, #13, #14, and #15. He testified that he witnessed Mr. Leyte's signature at coffee break on October 15th. #11 was obtained in a parking lot at a Georgetown plaza. The employee was advised that Mr. Davis was starting a petition against the union and asked if the employee would support him. He also acknowledged that by covering up the names of people who had signed the document he also covered up the preamble. However, he indicated that his fellow employees trusted the three of them and that only one employee asked to see the preamble. #12's signature was obtained at that employee's home on or about October 15th. #13 was obtained in the same manner as was #14. #15 was obtained the same day at about 10:30 or 10:45 p.m. He also denied any discussions about how the lawyer was going to be paid. He said Mr. Leyte was handling all that and that Mr. Leyte had talked to the lawyer "just the other day". He said he assumed that the three of them were going to have to pay the account. He testified that he was aware that Messrs. Leyte and Lamoureux had met with Mr. Hampton and it was only after that meeting he heard about a lawyer. He denied telling any employee that Mr. Hampton had been approached.

31. Mr. Davis testified that he was well aware of the union organizing campaign and probably knew of it after the third or fourth union employee had signed up. He said that word travels very fast in the plant. He said he was aware of the union meeting on October 6th and indeed had been invited to go by one of the union members who had signed a card. He said it may have been known that the company helped with obtaining a lawyer. But he emphasized that the three of them got together because they disliked the unions. He testified that none of the people he approached refused to sign the statement of desire. No one asked what was going to be done with the list. He said that he doubted any employee thought that Mr. Hampton was going to see the list in that they worked together and knew that the three of them wished to counteract the union. He said that no one hesitated before signing.

Submissions

32. The first submission of the company is that given the substantial passage of time since October 9th, 1980 (the date of application) and the fact that even at that time the union's support was only marginally above fifty-five percent, the Board ought to exercise its discretion and order a representation vote. It is not disputed between the parties that, since the date of application, the workforce has experienced a twenty percent turnover. Counsel submitted that the easiest way for the Board to ascertain the true wishes of the employees is by directing a representation vote. He agreed that the Board had rejected this approach in Fuller's Restaurant, [19801 OLRB Rep. Sept. 1289 but pointed out that delay in this case was some five months greater. It was suggested that the Board ought to take into account the Divisional Court's decision where there is comment on the apparent uncertainty of the employees with respect to trade union representation. In response, counsel for the applicant submitted that the matter had been remitted to the Board and that any delay was no fault of the applicant trade union. He submitted that the applicant was entitled to be put in the same position it would have been in had the Board not erred initially and also stressed that there is always the possibility of slippage in membership support between a membership drive and the date at which the trade union is able to execute a collective agreement. He said that it was for a trade union to meet with bargaining unit employees to explain the collective bargaining process and to encourage their support after the issuance of any certificate and that this case would be no exception. It was the applicant's position that the turnover was not significant and those employees who left may or may not be trade union supporters. It was also asserted that by ordering a representation vote the trade union would clearly not be placed into the position it would have been in in that it would be hard pressed to recapture the momentum it had achieved immediately following its organizing drive in 1980 for the purposes of a representation vote ordered in 1982. It was further submitted that such an approach would also encourage litigation in the courts.

33. The second submission of the respondent company is that a counter-petition is not contemplated by the Board's Rules of Procedure and that therefore the Board has no jurisdiction to take such evidence into account when weighing evidence of membership. Counsel submitted that by ignoring counter-petitions the procedures of the Board will be simplified and all a union will lose is an opportunity for outright certification without a vote. Counsel admitted that his submission was clearly against the weight of authority dating as far back as Brampton Poultry, [1961] OLRB Rep. Sept. 212. The most recent statement of the Board's approach was pointed out in Browning-Ferris Industries, [1982] OLRB Rep. June 816. Counsel for the applicant relied upon the Board's recent decisions in Leon's Furniture, [1982] OLRB Rep. March 404 and Browning-Ferris, supra, as a clear indication of the Board's policy to accept and rely upon counter-petitions. Counsel for the applicant submitted that such documents constituted membership evidence within the meaning of 1(1)(l) and section 103(2)(j) and within the meaning of section 76 of the Board's Rules of Procedure. Reference was also made to Rule 86 of the Board's Rules of Procedure which indicates that the rules are not exhaustive and that the Board properly submits counter-petitions to the test provided for by Rule 73 by analogy. Counsel further pointed out that the Board was authorized to accept such oral and written evidence as it in its discretion considers proper by virtue of section 103(2)(c). The Board was also referred to Uxbridge Beverages, [1982] OLRB Rep. June 961. Counsel for the applicant submitted that trade unions are usually given very little notice of the existence of a petition because petitions are very often filed with the Board on or about the terminal date. A trade union notified after the terminal date is prevented from reacting to the petition by circulating a counter-petition. Hence, the Steelworkers have developed the practice of always circulating a counter-petition to confirm membership evidence and to respond to any possible petition that may be filed and of which they have no knowledge. Counsel submitted that the concept of a counter-petition has been part of the practice before the Ontario Labour Relations Board for the last twenty years; that it is part of the labour relations scene in Ontario; and that, against this background, there would have to be a powerful legal and policy justification for dismantling the practice. Counsel submitted that it would be most unfair for the Board to deny itself the opportunity to see a change of heart whereby an employee signs a counter-petition and thereby lifts any doubt about his wishes. Reference was also made to Frito-Lay, [19811 OLRB Rep. May 538 and Re Royal Canadian Yacht Club 1981 CanLII 2935 (ON HCJDC), [1981], 129 D.L.R. (3d) 554.

34. With respect to the evidence pertaining to the origination and circulation of the statement of desire, it was submitted by the applicant trade union that the petitioners had not demonstrated that the statement of desire represented a voluntary expression of employee wishes. Emphasis was placed on the fact that as many as ten employees may have known that the plant manager suggested to the petitioners that they retain a lawyer. Counsel submitted that knowledge of this assistance would cause employees approached by Mr. Leyte and his friends to worry about company knowledge of their refusal to sign the document opposing the trade union. It was also submitted that the inability of employees to see and read the preamble undermined the reliability of the document. Alternatively, it was submitted that even if the statement of desire was voluntary, the counter-petition was also voluntary and that the Board should not deviate from its practice as expressed in Browning-Ferris, supra, of accepting the last voluntary document in time as the clearest expression of employee wishes. It was submitted that it would be totally chaotic and counter-productive for this Board to engage in a balancing process of which document is more voluntary and that such an approach would ignore the fact that there is "peer pressure" in all aspects of an organizing campaign. Counsel emphasized that the counter-petition was clearly voluntary and that no employee could have suspected that his refusal to sign that document would have been communicated to the company. Reference was made to Morgan Adhesives, [1975] OLRB Rep. Nov. 813; Frito-Lay, supra; Terminal Hotel, [1979] OLRB Rep. June 580; Conair Canada Limited, [1982] OLRB Rep. Feb. 159. Counsel for the applicant submitted that it was entirely improper for the employer to refer the objecting employees to a lawyer and that the company did not take a hands-off position, particularly in light of its letter to employees of September 24th. It was therefore submitted that any association between the objecting employees and the employer would cause fear, concern and anxiety in the minds of employees who had supported the trade union. For support that the counter-petition was voluntary, reference was made to Browning-Ferris, supra, and Uxbridge, [1982] OLRB Rep. June 17.

35. On behalf of the respondent company it was submitted that the counter-petition could not be considered voluntary because of the captive audience created by the holding of a meeting in a small motel room and the peer pressure that would have encouraged the employees to sign the document put before them by Mr. Varley. The Board was asked to take careful note of the judgment of the Divisional Court in the instant matter wherein the Court seemed to be encouraging the Board to weigh the quality of the signatures between these two documents. It was submitted that peer pressure was no more proper whether exercised by employers or employees. It was counsel's submission that all of the evidence should suggest to the Board that the employees really have not made up their mind and that they ought to be given opportunity of expressing their true wishes by way of secret ballot representation vote. Counsel submitted that there was nothing improper in providing the employees with the names of lawyers experienced in the field in that it was difficult to get this information elsewhere and that at all times the company indicated to employees that they had a right to joining a trade union and that the company could not interfere with this right.

Reasons

36. We are satisfied, having regard to the intial evidence of membership filed by the applicant, that more than 55% of the employees in the bargaining unit were members of the applicant trade union as of October 23rd, 1980, the date set by the Board pursuant to section 103(2)6) for determining evidence of membership in a trade union. However, even where the Board is satisfied that more than 55% of the employees in the bargaining unit are members of an applicant trade union the Board may direct that a representation vote be taken pursuant to section 7(2). It is in the exercise of this discretion that the Board considers "evidence of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union", filed with the Board in compliance with Rule 73 of the Board's Rules of Procedure. Stated another way, evidence of objection by employees to certification or of signification by employees that they no longer wish to be represented by a trade union is not, having regard to the scheme of the Act, evidence relating to membership in a trade union for the purposes of an application for certification and for this reason a statement of desire, no matter what the actual wording, does not cancel out or revoke membership evidence submitted by an applicant trade union in the form prescribed by section l(1)(l) of the Labour Relations Act. See Caldwell Linen Mills Limited, [1967] OLRB Rep. March 948 at paragraph 10; Diebold Company of Canada Limited, [1976] OLRB Rep. May 237 at paragraph 10; and Re Royal Canadian Yacht Club and Hotel, Restaurant and Cafeteria Employees' Union, Local 75 et al., (1981), 1981 CanLII 2935 (ON HCJDC), 129 D.L.R. (3d) 554 at 558. Rather, relevant "overlapping" evidence of objection by employees true certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union, filed not later than the terminal date for the application, and where accepted by the Board as a voluntary expression of the wishes of the employee signatories, will generally cast a doubt on the evidence of membership filed by an applicant (to use the words of the explanatory note found in Form 6) such as to cause the Board to exercise its discretion under section 7(2) and direct the taking of a representation vote. It would be somewhat anomalous if evidence of membership, which must withstand the requirements laid down in the Act together with its related rules and forms, could be "revoked" by a much less formal and essentially unregulated course of conduct which usually follows on the heels of an employee having joined a trade union. By making a representation vote the maximum effect of an opposing petition the legislation both accomodates the resiling nature of petition evidence and recognizes that trade union organizing campaigns often require considerable investment of time and monies. Once an employee has signed a membership application form and submitted to the cautionary test of the payment of $1.00, a trade union is entitled to rely on that commitment for the purposes of an application for certification to the extent that it is assured its application will not be dismissed on the basis of insufficient threshold membership support (i.e. 45 percent) by the mere filing of a "second thoughts" prior to the terminal date. If this was not the approach taken, a trade union would never know when to cease organizing. It is this relationship between membership and petition evidence which constitutes part of the policy behind permitting this board to direct a representation vote even when the trade union files membership evidence on behalf of more than 55 per cent in the bargaining unit. It is also the reason why the statute distinguishes between an application date and a terminal date.

37. However, before considering the petition and counter-petition, we need to deal with the respondent company's position urging that the passage of time since the filing of this application justifies the directing of a representation vote. We cannot agree that a representation vote should be directed on the sole basis of the passage of time since the date of filing of this application for certification. Prior to the interim certification provisions enacted in 1975, the Board experienced many complex applications, that without the intervention of judicial review, took a very long period of time to process differences between the parties. These differences usually centered on the configuration and composition of the bargaining unit. Even today, complex applications for certification involving widespread unfair labour practices or bargaining unit problems can take more than a year to process. If the Board were to accept that the mere passage of time could so fundamentally affect the outcome of an application for certification, an unfairness would be visited on those applicants who, by no fault of their own, become involved in complex and lengthy certification matters. There may also be encouragement for some parties to seek to delay a case in order to achieve this outcome. Clearly, there are equities on both sides of this issue. The turnover in the employer's workforce since the date of application is considerable. However, as already noted, the same level of turnover is possible in a lengthy application for certification not involving judicial review. In fact, the statute, by creating the concepts of "application date" and "terminal date", has considered the effects of labour force turnover and recognized that at some point in time the composition of a bargaining unit must be considered frozen to provide a stable basis for the purposes of a certification application. See Fuller's Restaurant, [1980] OLRB Rep. Sept., 1289. Considering the submissions of the parties and the evidence before us, we are of the view that the parties are best put in the position they would have been in had the Board not erred by considering this application as if there had been no passage of time.

38. We now turn to a consideration of the counter-petition and petition. As reviewed above, three employees who executed membership evidence soon after signed a statement of objection to certification by the applicant trade union and subsequent to that act reaffirmed their support for the applicant trade union by executing a counter-petition circulated by Mr. Varley and Mr. Roberts. It was the respondent company's position that the Board has no jurisdiction to entertain the counter-petition, even though filed by the terminal date, in that the Rules of Procedure of the Board make no reference to counter-petitions. It should be noted that the Board has entertained counter-petitions at least since 1957 and that this practice of the Board is well-known to the labour relations community. See Sylvania Electric (Canada) Limited, [1957] OLRB Rep. July p. 19; Preston and Sons Limited, [1960] OLRB Rep. Aug. p. 195; Brampton Poultry, [19611 OLRB Rep. Sept. 212; Fleck Manufacturing Limited, 62 CLLC ¶16,236. One of the most direct and early rejections of the submission made to us in this case is found in National Seal Division of Oil Seals Limited, 63 CLLC ¶16,295. Since these early cases, the Rules of Procedure have been amended a number of times, as has the Act. Against this background, we agree with the applicant that there should be a compelling legal justification for dismantling such a long-standing practice and, in our view, there is none. A counter-petition is as relevant to the wishes of employees and the exercise of the Board's discretion under section 7(2) as is evidence of objection by employees to certification or of signification by employees that no longer wish to be represented by a trade union. As pointed out by the Divisional Court in the instant matter, section 91(12) obligates the Board to give the parties a full opportunity to be heard. We also note that Regulation 546 is entitled "Rules of Procedure" and section 86 of these Rules indicates that the rules so prescribed are not intended to be exhaustive. Rule 86 provides that "procedure not prescribed is governed by analogy to these Rules". The Board is therefore acting properly in holding counter-petitions, which relate so closely to membership evidence and evidence of opposition, to the requirements of section 73 "by analogy". When all of these bases for the Board's practice are reviewed it is difficult to conclude the Board lacks jurisdiction to entertain such evidence.

39. We have carefully considered the evidence of Varley and Roberts and are satisfied that the counter-petition affirming membership in the applicant trade union constitutes a voluntary expression of the wishes of those employees who signed the document. It is important to note that only those employees who had already executed membership evidence in the applicant attended the meeting called by Varley and Roberts on October 21st, 1980. The organizers had no way of forcing or coercing these employees to attend a meeting held at a local motel off company time and away from company premises. Varley and Roberts were not fellow employees and had no control or power over the employees who attended this meeting. Indeed, the attendance of employees at the expense of family and leisure time is an indication of interest in the applicant. Accordingly, the Board concludes that they attended this meeting of their own free will and because of their interest in the organizing drive and the outcome of the application with this Board. The Board is satisfied that there is no merit to the employer's argument that the meeting in the hotel constituted "a captive audience". That phrase, in labour relations jargon, is limited to meetings called by an employer on company time and company premises. Employees may be obligated to attend or at least their failure to do so may identify them to the employer as trade union sympathizers. An employer, unlike Varley and Roberts, does have considerable and important control over the lives and welfare of his employees. Labour Boards have therefore been concerned about the impact of such meetings. The same kinds of concerns are not warranted at the type of meeting called by Varley and Roberts. Admittedly, there may have been "peer pressure" to attend and "peer pressure" to sign the counter-petition. But such peer pressure is inherent in trade union organizing drives and has never been considered relevant in determining the reliability of trade union membership evidence. If it was deemed relevant, this Board would be ordering representation votes in all application, for certification and the legislation clearly does not contemplate that outcome. Rather, trade union conduct is subjected to the tests of intimidation, coercion and misrepresentation. Based on the same reasoning, we accept the voluntariness of the signature obtained from the employee who was unable to attend the meeting of October 21st and who signed the counter-petition at his home in the presence of Varley and Roberts. He appears to have been genuinely ill and asked the organizers to report to him on the meeting. There was nothing improper in making that visit or in what was said and done during the visit.

40. We now turn to the petition. The evidence raises three issues pertaining to the voluntariness of the statement of desire or petition. First is the propriety of Mr. Hampton suggesting the name of three lawyers to the employees concerned. Second is the admission by one of those employees that he may have told as many as ten employees that he had retained Mr. Horan on the suggestion of the plant manager. Third is the effect of covering the preamble while soliciting signatures from employees. Before reviewing each of these issues it is useful to understand the general legal and policy background against which petitions are considered by this Board. There is usually and naturally an identity of interest between an employer and those of his employees interested in opposing an applicant trade union. In this context the circulation of a statement of desire involve petitioners approaching their fellow employees to solicit support. Understandably, an employee so approached may worry or feel anxious that his refusal to sign such a petition will become known to his employer given this natural interest employers have in employees opposing the trade union. But, this identity in interest between employer and opposing employees, standing alone, has never been viewed by this Board as undermining the reliability of signatures placed on a circulated petition. If this were not so, a petition could never be found to be voluntary. On the other hand, this is not to say that a similarity in interest between employer and petitioners is irrelevant and, indeed, it is the reason why this Board subjects the origination and circulation of a statement of desire in opposition to an application for certification to considerable scrutiny. There is an onus on those employees who present the documentary evidence to the Board to demonstrate that the signatures contained therein constitute a voluntary expression of the wishes of those employees who on recent and earlier occasion joined the applicant trade union. It is in this context that the Board, in the often cited Pigott Motors (1961) Ltd. case, 63 CLLC ¶16,264, made the following observation:

The Labour Relations Act contains detailed provisions designed to protect the rights of employees to become members of, and to select or reject a particular or any trade union as their collective bargaining agent and to bargain collectively or individually with their employer. It is an important function and duty of this Board under the legislation to be circumspect and vigilant to see that these rights are preserved and not made illusory.

There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. One of these facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. 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 interest 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 in 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. (See for instance, the Sinnott News Case, CCH Canadian Labour Law Reporter, 1955--59, Transfer Binder ¶16,114 at p. 12,209, and the Fleck Manufacturing Ltd. Case, CCH Canadian Labour Law Reporter, vol. 1, ¶16,236, at p. 13,201). In seeking this assurance, the Board draws no distinction between documents which purport to express a desire on the part of employees to resign from the union and those which purport merely to express opposition to the applicant as their collective bargaining agent. In other words, for this purpose, it does not seek to distinguish between the two matters of membership and representation.

41. Actions by either the employees opposing the trade union or the employer can adversely affect the reliability of a statement of desire. Direct and open support by an employer will obviously suggest a relationship between the employer and the petitioners that would reasonably cause anxiety in the minds of employees approached by the petitioners. Therefore, in such circumstances, it would be just as reasonable to infer that the employees signed the document to conceal their support for the trade union as it would be to conclude that they signed voluntarily. Where this is the case, the Board usually takes the view that the petitioners have not satisfied the onus on them and the statement of desire is dismissed as an unreliable indicator of the true wishes of the employees. Similarly, actions by the petitioners without support of the employer can equally destroy the reliability of a statement of desire. Circulating a document in the presence of foremen or representations clearly indicating support by the employer can produce the same anxiety in the minds of employees whose signatures are solicited and thus prompt the Board to respond in a similar fashion.

42. In the instant case two of the petitioners approached the plant manager. He did not single them out and we are of the view that the plant manager's letter of September 24th would only encourage employees who wished to oppose the trade union to approach the plant manager. But the letter clearly conveyed where this employer stood on the issue of collective bargaining to the entire work force, a fact which is relevant to our conclusion at paragraph 45. We find that it was the plant manager who suggested that the employees retain a lawyer and, after consulting with his own solicitor, came forward with the names of three lawyers. The Board has experienced at least two types of situations in the area of lawyer referrals. In C'harles Wilson Limited, [19791 OLRB Rep. Jan. 20, a group of employees wishing to oppose the trade union met with a general manager and an assistant general manager and the general manager advised the employees "to see a lawyer". During the course of this meeting which lasted some ten minutes, the employees wanted to discuss the benefits which they currently enjoyed and desired to know the benefits they would receive if the respondent trade union was not representing them. The two managers informed them that there was no way they would discuss these matters at all. The Board stated it was not prepared to find that this contact with members of managment in itself destroyed the voluntary nature of the subsequent statement of desire. It was stated that the effect of such contacts must be considered in the context of the surrounding events and the response of management. The Board found nothing in the evidence with respect to that meeting which reflected upon the voluntariness of the statement of desire. The Board noted that "short of remaining mute" there was little else the managers could reasonably have done. On the evidence before the Board it was decided that the employees had received no encouragement from the meeting. In Northland Glass and Metal Limited, [1982] OLRB Rep. July 1037, an employee approached the employer and, after indicating that the employees were to seek to decertify the incumbent trade union, asked him if he knew a lawyer who could represent them. The employer gave the name of counsel who was acting for the applicant and told the employee that he could find the lawyer's telephone number in the directory. There was no further discussion then or later between the applicant and the employer. In refusing to dismiss the application for decertification the Board ruled:

While Mathon's request of the employer for the name of the lawyer to assist the employees with their application raises concerns about the voluntariness of the statement, standing alone it is not sufficient to indicate that the statement of desire was inspired, fostered or instigated by management influence. This is not a situation in which there has been some sudden, unexplained change in the intent of the employees which may happen in an application for certification when employees who have recently signed application cards in support of the trade union shortly thereafter sign a petition against representation by that union.

43. Another line of cases represented by Selinger Wood Ltd., [1979] OLRB Rep. May 434 and A. R. Milne Electric Ltd., [19821 OLRB Rep. June 911. involve situations where an employer referring employees to a lawyer completely undermines the reliability of a statement of desire. In Selinger Wood Limited an employee attended on a member of management and, as a result, was referred to a lawyer. Upon enquiring of management as to who would be responsible for the payment of the legal fees involved, he was told not to worry about them, that the matter would be taken care of by the company. In the face of that evidence the Board was unable to find that the document presented in support of the application was voluntarily signed by any of the employees whose names appeared thereon. In A. R. Milne Electric Limited an employee talked over the matter of terminating a trade union's bargaining rights with his employer. Neither the employee nor the employer were certain about how a termination application could be made so the employer indicated he would contact the firm's solicitors to take care of the matter. Those solicitors obtained and prepared the documentation initiating the decertification application together with a covering letter for the employee's signature. When the employee had second thoughts about his course of action, his employer asked him two or three times whether the termination application had been filed and he eventaully did so. Unsurprisingly, the Board was not satisfied that the application constituted a truly voluntary expression of the individual concerned.

44. Did the employer's conduct in the instant matter undermine the reliability of the document filed by the petitioners. It is significant that the two employees approached the plant manager with their minds made up to oppose the trade union. Had the employer simply advised that the employees should see a lawyer there would be no basis to a submission that the resulting statement of desire was adversely affected. However, Mr. Hampton not only suggested that a lawyer be retained, but also provided the names of three lawyers. Where this is done, employees may feel obliged to take such specific advice or may conclude that the employer is willing to shoulder the costs of following a very specific recommendation, particularly when he has an obvious interest in seeing that the recommended cause of action is followed. On the other hand, plant manager did not follow up his advice to the employees and Mr. Leyte appears to understand that he must pay the lawyer's account, although curiously it remains outstanding. Having regard to all of the circumstances, we are satisfied that the employees were committed to opposing the trade union before they walked into Mr. Hampton's office and they would have opposed the applicant regardless of the plant manager's advice.

45. The next issue is Mr. Leyte's admission that he may have told up to ten employees that his lawyer's name had been suggested by the employer. We are of the view that this admission is fatal. To advise other employees that the lawyer representing the petitioners was suggested by the employer could reasonably create a direct link between the petitioners and the employer in the minds of employees approached by the petitioner. Understandably, they could fear that their refusal to sign the petition would be communicated to the employer particularly having regard to Mr. Hampton's letter to the work force dated September 24, 1980. This is one risk associated with very specific advice by employers to objecting employees.

46. With respect to the concealment of the preamble, of importance is Rule 73(2) of the Board's Rule of Practice which provides:

No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

47. Since its inception, the Board has been extremely cautious in the administration of this provision because of the policy of secrecy surrounding union membership provided for in section 111 of the Act. Section 111(1) provides:

The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.

48. However, recently the courts have admonished the Board to be cautious in refusing to permit petitioners to explain their conduct in circulating a statement of desire. In Re Fisher et al and Hotel, Clubs, Restaurants, Tavern Employees' Union, Local 261 et al. (1980), 1980 CanLII 1882 (ON HCJ), 110 D.L.R. (3d) 393, the Divisional Court quashed a Board decision refusing petitioners the right to adduce oral evidence to show that, notwithstanding a poorly worded preamble, the document was in fact intended to represent the employees' opposition to the certification of the union. In the instant matter the preamble was clear on its face and no issue of whether the Board would hear or refuse to hear evidence to substantiate the document immediately arose at the hearing or was discernable on the face of the document. The petitioners were permitted to call whatever evidence they wished and only on calling this evidence did it become clear that the preamble had been concealed from all the signatories save for one employee who asked to see it. Considering all the evidence, we are of the view that the document ought to be accepted. There is no doubt that a preamble was contained on the face of the petition at the time it was signed by all employees and that each employee had the opportunity of asking to examine the preamble if he or she wished. No employee had the document misrepresented to him or her. We further point out that the evidence called by the petitioners did not in fact raise a section 111(1) issue in itself or in terms of the applicant trade union's response and, thus, in the circumstances of this case, the Board is prepared to rule that the statement of desire is not objectionable or its reliability undermined by this action of the petition's proponents. Any other approach would be entirely too technical.

49. From the foregoing analysis, we have concluded that Leyte's admission he may have told as many as ten employees that the plant manager suggested the name of the lawyer assisting them destroys the reliability of the petition document as evidence of the voluntary expression of employee wishes who signed it. However, even if we had concluded the petition was a voluntary expression of employee wishes, all of the evidence before us points out the before us points out the difficulty of forming any conclusion under section 7(2) based on a comparison of the voluntariness of the two forms of petitions. For example, the visit of Varley and Roberts to the home of one employee is no more significant or objectionable in assessing the voluntary wishes of that employee than the visits of Leyte, Davis and Lamoureux. This is the nature of a organizing campaign and opposition to it. One document cannot be preferred over another at this level of analysis. The apparent rapid changing of minds on the part of three employees can be explained as a protective response in signing the petition (and, thus, the voluntary execution of the counter-petition when that document was made available to them), as a product of peer pressure (a condition which afflicts all campaigning), or as a product of true confusion or indecisiveness. Given the concern of the statute for confidentiality, it is seldom possible to ascertain if the last factor exists and is the principal cause for the petition and counter-petition. To order, as a general matter, a representation vote in such circumstances would give undue weight to this possibility and ignore the emphasis the statute places on membership cards as the method of determining employee wishes where this support is in excess of fifty-five per cent. While the full breadth of the comments of the Divisional Court in this matter must be given very careful consideration, we think it fairer and consistent with the Act's scheme that employees be governed by their voluntary actions and, in particular, their last voluntary response to the Board prior to the terminal date. While there may be exceptional situations, the experience in this case tends to confirm that in the face of a relevant voluntary counter-petition, a voluntary petition will not be sufficiently probative to the exercise of the Board's discretion under section 7(2) to merit an inquiry into the petition's origination and circulation.

50. On the evidence before us, therefore, the Board is satisfied that more than 55 % of the employees in the bargaining unit as of the terminal date were members of the applicant trade union and that, in our opinion, there are no grounds for this Board to exercise its discretion pursuant to section 7(2) and direct the taking of a representation vote.

51. A certificate will therefore be issued to the applicant.

DISSENT OF BOARD MEMBER C. G. BOURNE;

1. In view of the many complex factors affecting this case, viz;

a) the lapse of time from the original application on October 9, 1980, the reference to Divisional Court in 1981 who remitted it back to the Board, the Appeal which was rejected on December 16, 1981 and the most recent hearings on September 8/9, 1982;

b) employee turnover of 20% in the interim;

c) the original membership vote which was marginally above 55%, and

d) the difficulty in evaluating the weight to be given to the petition and the counter-petition;

I would advocate putting the matter to a vote of the employees concerned in order to provide a final and definitive answer.