[1982] OLRB Rep. March 404
2289-81-R Teamsters Local Union No. 879, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Leon's Furniture Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: George W. Adams, Q.C., Chairman, and Board Members J. A. Ronson and F. S. Cooke.
APPEARANCES: Ken Petryshen and Jim O'Donnell for the applicant; Roy C. Filion, George Leon and Greg Leon for the respondent; and Ken A. McCallum and Robert Hendriksen for the objectors.
DECISION OF GEORGE W. ADAMS, Q.C., and F.S. COOKE; March 10, 1982
This is an application for certification.
The Board finds the applicant to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties the Board is satisfied that all employees of the respondent working in Burlington, Ontario save and except supervisors, those above the rank of supervisor, office and sales staff, those regularly employed for not more than twenty-four hours per week and students employed during the school vacation period constitute a unit of employees appropriate for collective bargaining.
This matter involves charges by the respondent employer pertaining to the validity of the membership evidence filed by the applicant; charges by the applicant with respect to the employer's conduct in relation to a relevant petition; and a relevant counter-petition. The Board heard evidence with respect to the respondent's charges and, in order to expedite the hearing, the parties agreed that the petition was a voluntary expression of employee wishes permitting the Board to focus only on the voluntariness of the overlapping counter-petition.
The evidence establishes that Mr. Jim O'Donnell, a full-time organizer for the applicant, convened two evening meetings of employees on February 1 and 2 to discuss the merits of joining the applicant for the purposes of collective bargaining. Each meeting lasted at least two hours and no membership cards were signed until the second meeting. The employer called two witnesses. Robert Hendriksen, an employee of the respondent, testified in examination-in-chief that O'Donnell described the initiation fee structure of the applicant by saying "if you pay $5.00 now it would not be necessary to pay $50.00 or $55.00 when the union got in". He said he signed a card to save himself the extra money and that a few days after the second meeting Shawn Comeau, another employee, told employees that "the $50.00 comment was a mistake". He testified that O'Donnell said that union dues would have to be paid whether or not an employee signed a card. He summarized his recolletion of what O'Donnell 'said by stating "if the union got in and an employee did not sign a card that day (i.e. the day of the meeting) the employee would have to pay $50.00 and if the union got in an employee would have to pay union dues regardless". On cross-examination he admitted that the organizer may have said that only new employees joining the respondent after the execution of a collective agreement would be required to pay a higher initiation fee. He further agreed that there was no suggestion that an employee would lose his job if he did not sign a union card. However, on re-examination he said he thought he would have to join the union if the union did get in although it is not clear that this belief arose from anything O'Donnell said. And, finally, he admitted to being an established supporter of the applicant prior to the calling of the two meetings and that he actively supported it after the second meeting was held. He said he attended two meetings called by the employer on February 5th in the warehouse by Mr. Leon. He said Mr. Leon asked the employees to give him a chance - at least thirty days - to straighten everything out. He agreed that he was one of the employees who thought the requested time should be given to the respondent. He further testified that Leon gave the employees some telephone numbers should they want to talk over wages and promotions. Hendriksen agreed that he was one of the employees who went in to talk to Mr. Leon on these matters.
Ken McCallum testified. While he was a supervisor a few weeks before the application for certification, it is clear he was a member of the bargaining unit at the time the application was filed with the Board. He attended the second meeting convened by O'Donnell. He testified that O'Donnell told the employees that "it was $5.00 if they wanted to join the union now and that if they didn't join before the union was in effect they would have to pay $50.00 or $55.00 whether they joined the union or not". From the evidence it is clear that O'Donnell and certain of the other employees knew McCallum was against the applicant; however, O'Donnell had no objection to his attendance at the meeting. McCallum testified that he asked O'Donnell "whether an employee had to pay all the money even if he did not join the union" and O'Donnell replied that he would. On cross-examination he said he was explicit in indicating that he meant the initiation fee and union dues by this comment but he was not sure that O'Donnell heard his inclusion of the $50.00. McCallum also testified that Comeau spoke to him on approximately February 5th and explained that no additional initiation fee would be required and that, indeed, existing employees could join "for free". Both Hendriksen and McCallum stated that O'Donnell was unsure of the regular initiation fee for the applicant local union but that the fee for his own local was $55.00. Thus, he assumed the regular initiation fee for the applicant would be in the area of $50.00 or $55.00.
Jim O'Donnell testified. He had conducted one organizing campaign before this one and had participated in two others where he spoke to the employees. He had also assisted ten or eleven others and had been involved in organizing since October 5, 1981. He had taken a course at H umber College about the subject as well. He said he approached the two meetings with a desire to avoid misunderstanding and to be honest. He testified that the normal initiation fee was not discussed at the first meeting, only union dues and the $5.00 application fee. At the second meeting, however, he testified he told those attending that he was unsure what the normal or regular initiation fee was for this local but that it would apply only to new employees in any event. He said he told them the regular fee for his local was $55.00. He testified that at both meetings he made an initial presentation to the employees, answered questions and then left the room to give them an opportunity to decide if they wanted to proceed with their interest in collective bargaining. He said he told the employees that it would not be easy to deal with the respondent and told the Board that he wanted to know what he was up against. In short, he wanted the employees to make a conscious and deliberate decision to go forward. However, he agreed that questions to him by Comeau on February 5th and Hendriksen on February 8th indicated that some employees were confused over the application of the applicant's initiation fees to employees who did not join the applicant right away. He said he was frustrated over this continuing problem and instructed both employees to tell others that no additional fee had to be paid by existing employees. The applicant's policy was explained as permitting all current employees of an employer to joing for $5.00. Employees who did not join during the organizing drive would be given a further opportunity to join for $5.00 on the signing of a collective agreement. However, all new employees must pay the regular initiation fee.
The applicant also called two employees of the respondent in answer to the respondent's charges. Shawn Comeau was described as the "key employee" by O'Donnell and had made the initial contact with the applicant. He testified that at the first meeting O'Donnell spoke of the $5.00 fee on signing a card and the fact that union dues would start on the execution of an acceptable collective agreement and would likely amount to two hours wages a month. He said that at the second meeting O'Donnell indicated that persons who commenced employment with the respondent after the signing of a contract would have to pay more. Comeau said O'Donnell did not know the precise initiation fee for the applicant but his local required $55.00. Comeau said all the cards were signed at the conclusion of the second meeting. A few days later when a group of employees were trying to persuade another employee to join the applicant, Comeau said someone said "it would cost more if the employee did not sign now". Comeau did not think this was right and decided to seek clarification from O'Donnell. He did this on February 5th and O'Donnell told him only new employees would have to pay more. Comeau reported back to Ken McCallum and others that no higher fee was required if an employee did not join the union now. Glen Spurr is an employee of the respondent and attended the two meetings. He said there was considerable discussion about fees both evenings. He understood O'Donnell to say anyone newly employed by the respondent after the applicant was in would have to pay an increased fee and for O'Donnell's local this was $55.00. Spurr later learned that the applicant's normal initiation fee was $50.00. However, he understood that for employees already employed by the respondent it was going to cost only $5.00. On cross-examination he agreed that there was confusion in the workplace over the topic but that Comeau "cleared it up". He also agreed he did know if employees were confused on the evening they signed their cards. He clearly was not.
Counsel for the respondent asserted that at least two employees were under the impression that "it was $5.00 now or $55.00 later". He submitted that on the balance of probabilities the Board should find that O'Donnell made such a representation. Alternatively, he submitted that it was enough if O'Donnell's comment unintentionally led employees to believe that a two tier fee structure existed. It was his submission that this confusion casts a serious doubt on the validity of the membership evidence filed and that the Board should either dismiss the application or order a representation vote. Great reliance was placed upon the Board's decision in Alex Henry & Son Ltd., [1977] OLRB Rep. May 288. For the applicant it was submitted that the alleged statement was not made and that the Board had to worry about "persons hearing what they wanted to hear". Counsel stressed that, unlike the Alex Henry & Son Ltd. case, the job security of employees had not been tied to joining the trade union. It was submitted that the Board ought not to require an unrealistic level of communication by organizers. Reliance was placed on Hancock Sand & Gravel Limited, [1978] OLRB Rep. Oct. 928.
The statute permits the Board to certify applicant trade unions to represent employees based upon written authorizations involving the payment of at least $1.00 where such "membership documents" are properly executed and witnessed and where the application is supported by a declaration made by a knowledgeable official, declaring that the monies were paid as the membership documents indicate. See for example Form 9 and sections l(l)(l) and 103(2)(j) of the Act. Thus, the Board relies on the execution of such membership evidence as an indication of the true wishes of employees and where more than 55 percent of the employees in the bargaining unit are members of the trade union, the Board wil usually certify the applicant without a representation vote. However, because of the "hearsay" quality of membership cards, a fact demanded by the membership secrecy section of the Act (see section 111(1)), conduct by organizers that obscure the primary reason why an employee signed a membership card is of concern to the Board. Misrepresentations, coercion and intimidation leading to the execution of membership evidence all undercut the realiability of such evidence as a true indication of the voluntary wishes of employees. On the other hand, the intricacies of collective bargaining can be difficult to explain and the organizing process undoubtedly involves controversy and salesmanship. Organizers are often inexperienced rank and file members.
The board has drawn the line of regulation between salesmanship and improper conduct at fundamental misrepresentation, coercion and intimidation. Such conduct, when engaged in by trade union officials, will usually result in the Board's refusal ro rely on any of the membership evidence submitted whereas the involvement of rank and file supporters may cause the Board to reject only the membership evidence handled by such persons. The latter depends upon the state of knowledge of trade union officials and their related conduct to rectify matters if they were aware of the improper conduct. The Board has not attempted to lay down standards of conduct aimed at responding to confusion and misunderstanding. Rather, it has tried to strike a balance between competing interests by censuring conduct that could deter, coerce or mislead the reasonable employee. The reduced payment before certification has been viewed by the Board as a borderline tactic which has sometimes crossed the line of acceptability.
In Canadian Electric Box and Stampings Limited, [1964] OLRB Rep. Sept. 284 certain employees who were soliciting union membership on behalf of the applicant told other employees that if they did not join the union and pay a $1.00 initiation fee it would cost them between $25.00 and $75.00 after certification. The mixed feelings of the Board in dismissing the objection is revealed where it writes:
… If a union can do this [i.e. reduce its initiation fee for an organizing drive] then the suggestion that it will do so cannot of itself be an unfair labour practice especially where the suggestion is made by persons who are not officers or representatives of the union. In any event, such suggestions could not be construed as threats since the persons making them were known to have no power to enforce them. In this case, the Director of Organization of the applicant union stated at a union meeting that the initiation fee would not be increased after certification.
The conduct of the employee members of the applicant against whom the above allegations were made in this case is not the type of conduct which in our opinion, could be classified as intimidation or coercion of the type found in the Mi/net Mines Limited Case, Canadian Labour Law Reporter, Transfer Binder '49-'54, ¶117,063, Canadian Fabricated Products Limited Case, Canadian Labour Law Reporter, Transfer Binder '49-'54, ¶117,090, in which cases threats were made which were of a type which could reasonably be carried out and would have adversely influenced the average employee.
- The case of Kitchens of Sara Lee (Canada) Limited, [1964] OLRB Rep. April 44 demonstrates the Board's willingness to distinguish between salesmanship and misrepresentation in a case not involving a two tier initiation fee. In that case the union organizer told employees that the company "wanted a union but it was something it could not do for itself'. In dismissing the respondent company's charges the Board observed:
It must have been obvious to the employees that he was making a "sales pitch" to gain support for the applicant union. Considering the misrepresentation in this light and in the context of all his remarks we do not think that the employees were so misled as to impair their ability to make a reasonable evaluation of his "pitch" and to determine its true worth. Certainly nothing was said which can be interpreted as an attempt to intimidate or coerce the employees. The employees must have known that as a union organizer Zimmerman could not affect their employment status. In all the circumstances we do not find that the misrepresentation amounts to fraud. The employees clearly understood that they were being asked to join an international trade union and Zimmerman outlined to them the economic objectives which the union intended to pursue in relation to the respondent company. These objectives are hardly compatible with the company wanting the union in the plant. Nevertheless, each of the three employees testified that she joined the union because she believed Zimmerman's statement. In determining the weight to be given to this portion of their evidence we are not unmindful of the fact that three months had elapsed since they had joined the union. Referring specifically to the evidence, Anne Ashton testified that even after Zimmerman's speech she was not prepared to join the union. It appears from her testimony that she only signed a membership card as a result of the urging of other employees who were present. Erna Peters stated that she thought it was very unusual that the company wanted the union. In view of the economic demands which Zimmerman informed the employees he intended to make on the company we are not surprised that she thought it was unusual or even incredible. The evidence of Sharon Smith is so uncertain that we can give little weight to her testimony. Considering the evidence of the three women in its totality, we do not accept their hindsight explanation for joining the applicant union. In our opinion, the employees were quite capable of making, and in fact, did make the decision to join the applicant union of their own volition.
- On the other hand in Walter E. Selck of Canada Ltd., [1964] OLRB Rep. June 138 the union's organizational campaign was under the sole direction of a rank-and-file employee. She had signed up all but three of sixty-two membership cards and two employees testified that she told them if they refused to sign and the union got in they would be without a job. These witnesses also stated that they informed other employees of this. After the organizer did not refute the charges the Board dismissed the application and wrote:
On the evidence before us the threats in question were clearly, in our opinion, contrary to the provisions of section 52 of The Labour Relations Act and, therefore, they did constitute unfair labour practices. Our experience in such matters compels us to take cognizance of the fact that the question as to whether a person was or was not influenced to sign a petition or a union card by threats of economic reprisal, is often more reliably ascertained from the objective facts as whole than from mere subjective assertions from witnesses given later. However, even if we were to find, as argued by counsel for the applicant, that the particular two employees in question, as it turned out, were probably not in fact influenced by the threats of economic reprisals made by Mrs. Angel, we are not persuaded that we should or can disregard them. In this respect we have no assurance that employees other than the two in question did not sign cards under and as a result of the knowledge of such threats being made to the two persons in question or of similar threats being made to them by Mrs. Angel.
In L. M. Welter Limited, [1965] OLRB Rep. April 34 a representative told at least two employees that if they joined the applicant now, it would be at a special rate and, further, "if they didn't want to have anything to do with the union they would be out of a job". The Board found that the employees took the last statement seriously and decided it could give no weight "to membership evidence filed by the applicant on behalf of these employees". This ruling was sufficient to dismiss the application.
In VR/Wesson Limited, [1968] OLRB Rep. Nov. 811 an organizer told an employee he would be "the first man fired" when the union was certified. The organizer was not a fellow employee but was the financial secretary of the local union of the applicant at another plant. He had signed up seven of the applicant's twenty-three members. Relying on Mi/net Mines Limited 53 CLLC ¶1 17,063 the Board concluded it was unable to accept as satisfactory proof of membership any of the documentary evidence filed by the applicant. In the Mi/net Mines Limited case, supra, representatives of the applicant trade union threatened to assault several employees of the respondent as "part of a deliberate and calculated scheme to put the organizers of the intervener in fear and to drive them out of town". The Board concluded that conduct was of such a nature that men of ordinary fortitude and convictions would be inhibited from joining the intervener.
In Fabricon Manufacturing Limited, [1969] OLRB Rep. June 353 a rank and file employee had told employees they would be fired if they did not join the union although union officials were unaware of this statement. In dismissing this objection the Board emphasized that the employees would have known that the offending employee would have no authority over them and trade union officials had not been involved.
In Green Giant of Canada Limited, [1973] OLRB Rep. June 376 the Board again dealt with a situation in which one employee told another he would either lose his job or have to pay a fine later. The Board dismissed the charges because the representations had not been condoned by the applicant union and could have been checked by the person's fellow employees. The Board found that the actions of the employee organizers were not such as would unduly influence a reasonable employee and did not constitute intimidation, coercion or threats within the meaning of the Act. See also The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611.
In Alex Henry a full-time union organizer associated with Mr. O'Donnell's local was found to have told employees at a meeting "that they could join the union at that time for a fee of two dollars but that if they joined at a later date it would cost them fifty". An employee called by the respondent testified that he took that statement to mean that if the applicant was successful in its certification drive those employees who did not join prior to certification and who wanted to retain their jobs afterwards would be required to join the union at the higher initiation fee. The union organizer failed to clarify that this would only be so if a compulsory union membership clause was negotiated and where the union was unwilling or unable to waive the higher fee. The union organizer was present at the hearing but did not testify to explain or refute the allegation. The Board feared that the statement raised a real misapprehension among employees as to their rights in respect of the trade union. The Board noted:
We are not, however, satisfied that the statement might not have raised a real misapprehension among the employees as to their rights in respect of the union. A reasonable employee hearing Mr. Reilly might well have concluded that upon the union being certified he would have no alternative but to pay the higher fee if he wanted to keep his job. An employee forming that view might have signed a membership application as a result of what amounts to a tacit misrepresentation on the part of the union representative.
The Board's consistent policy in certification proceedings has been to require the highest standard of integrity on the part of union officers in the soliciting, gathering and presentation to the Board of documentary evidence in support of their application. Since that evidence remains confidential, is not subject to cross-examination and is the principal evidence on which the Board must rely in certification proceedings, it must be free of any cloud or taint. If, in view of the circumstances touching the soliciting and collecting of the membership evidence, the Board is left in doubt it may use its discretion to order a representation vote to resolve that doubt.
A union officer is under a duty to refrain from making false or misleading statements in the course of an organizing campaign. We find that the statement of Mr. Reilly, which might better be termed a half-statement, is latently, if not patently, misleading. His failure to explain his statement to the employees by omitting to say that the higher initiation fee would be forced on them only if the union could succeed in its application for certification, could thereafter successfully negotiate a union shop contract with the employer and would at that time be unable or unwilling to waive the higher initiation fee, leave this Board in some doubt as to whether employees for whom membership evidence was filed were in fact misled and therefore unable to fairly weigh the meaning of Mr. Reilly's statement as it might affect them. This raises some doubt as to whether the membership evidence filed is an expression of the true wishes of the employees.
While there had been no explicit linking of the higher initiation fee to an employee's job security, the Board found that an employee might reasonably see this link and therefore held that the full-time union organizer is under a duty to explain in detail how his statement might come to pass. Once having raised a topic that relates to job security and amounts to a significant financial enticement, there is an affirmative obligation on the organizer to be totally candid. Therefore, in Alex Henry the Board concluded that the bald statement $2.00 now or $50.00 later" crosses the boundaries of acceptable salesmanship. However, instead of prohibiting a two tier initiation fee structure for the purposes of an organizing campaign, the Board has instead required complete disclosure on how it would impact on the employee who refuses to sign a membership card before the trade union is certified. This, it seems to us, is a reasonable approach given the reality that many trade unions customarily reduce their initiation fees for the purposes of organizing campaigns.
In Crenmar Services Limited, [1978] OLRB Rep. Jan. 48 someone other than a full-time union organizer told a few employees that "you can sign now for two dollars, but once the union gets in it will cost up to a hundred and fifty dollars". The employee who testified said he was motivated to sign a card by the statement but on cross-examination admitted he had earlier expressed a desire to become a union steward. In dismissing the objection the Board emphasized that the statement was made by a rank and file employee who was not an organizer, and went on to hold:
Unlike the situation with a union official, a rank-and-file employee is not in a position to seek to achieve the consequences of any statements he may make during a union organizing campaign. Further, employees upon hearing any statements made by rank‑and‑file employees concerning what a union might do in the future can always check out the accuracy of those statements with a responsible union official before signing a membership application. Having regard to these considerations, the Board is generally less willing to infer that a reasonable employee is likely to be improperly influenced into signing a membership card on the basis of statements made by a rank-and-file employee than it is with respect to statements made by a union official. (See: Canadian Electric Box and Stampings Limited, [1964] OLRB Rep. Sept. 284; Green Giant of Canada Limited, [1973] OLRB Rep. June 376 and The Kendall Company (Canada) Limited, [1975] OLRB Rep. 611.) In the instant case the Board is likewise not satisfied that reasonable employees were likely to have been misled by what was said by the unidentified rank‑and‑file employee. This being the case, the Board declines to order a representation vote on the basis of any concern that employees generally may have been misled into signing membership applications.
In Hancock Sand & Gravel Limited, [1978] OLRB Rep. Oct. 928, the Board again dealt with the use of a two tier initiation fee representation by rank and file employees. Two to four employees were told that if an employee paid $1.00 now "then he would only have to pay $15.00 to join the applicant but that if he waited it would be $100.00". No employee made an assumption linking the statement to job security and none of these employees joined the applicant. And at least one of the union organizers alleged to have made the statement testified that he said the higher initiation fee was restricted to new employees. In dismissing the charges the then Chairman of the Board wrote:
What effect do these statements have on the membership evidence submitted by the applicant? There is no evidence that these statements were other than isolated incidents occurring during the applicant's organizing drive. It is significant, moreover, that these statements were made by rank-and-file employees, and not by a full-time union official. What we are dealing with here are honest attempts by ordinary employees to explain the applicant's fee structure. The conversations did not contain any express threat to job security, nor is it reasonable to read into these statements any implied threat to job security. If the statements made gave rise to any misunderstandings, the employees involved had full opportunity to seek clarification which they chose not to do.
This situation here is unlike that found in Alex Henry & Son Ltd., supra, where a full-time union official at a meeting of employees did not disclose fully the union's fee structure, leaving the clear implication that employees who did not join immediately would have no alternative but to pay the higher fee later if they wished to keep their jobs. In these circumstances the Board held that the union official had the responsibility to clarify any statements that might be construed by employees as being a threat to their job security.
The Board considers that it would be unrealistic to expect the same standard from the rank-and-file organizer as from the full-time union official. It is reasonable to assume that the ordinary employee is less conversant with the operation of union security provisions. If less than a full explanation is provided by him, moreover, its impact upon other employees is likely to be less than where the statements of a full-time union official suffer from the same defect. As the Board indicated in Cremar Services Limited, [1978] OLRB Rep. Jan. 48, the rank-and-file organizer is not likely to be perceived by his fellow employee as being in a position to seek to achieve the consequences of any statements he may make during a union organizing campaign. Where employees discuss the merits of joining a union among themselves, it does not seem unreasonable to expect that a few misconceptions might arise, some lending support to the union and some working the other way. We consider that employees are quite capable of dealing with such misconceptions by seeking any necessary clarification, and then making an informed decision as to whether they wish to join a union.
In this case, the Board was obviously concerned about imposing an "unrealistic" standard for accuracy and disclosure on "the rank and file organizer". In the instant case we are dealing with the alleged representations of a full-time union organizer.
In Bond Structural Steel (196S) Ltd., [1979] OLRB Rep. Dec. 1137 the respondent alleged that an employee who had signed the majority of the employees told them they could join now for $1.00 and that it would cost them $150.00 later. The rank and file organizer denied making the statement but the Board proposed to deal with the matter on the basis that he had. The Board emphasized that there had been no direct reference to loss of employment and was not prepared to conclude that an employee might reasonably make the link. The Board also went on to emphasize that the employee was not a union official and dismissed the charge. Finally, in Thames Steel Construction Ltd., [1980] OLRB Rep. April 545 an employee told another employee that the cost to join the applicant then was $1.00, but if he did not join he would have to pay a penalty of $120.00. In fact, the dispensation for employees of the respondent was not restricted to organizing and the employer argued that the statement amounted to a misrepresentation. In dismissing the objection the Board reviewed its jurisprudence and found that the employee in question "was a rank and file employee of the respondent, did not obtain and file with the Board a single membership card in the applicant and did not succeed in persuading the employee to whom he spoke to sign an application for membership in the applicant union".
O'Donnell is a full-time organizer. The Board has concluded that the alleged representation when employed by such an official is sufficiently coercive and distracting to the reasonable employees that a representation vote should be directed to eliminate any doubt over the true wishes of the employees. Accordingly, if the evidence adduced by the respondent establishes the allegations made before us, a representation vote should be directed. We are in full support of the Alex Henry principle.
Having carefully reviewed this evidence, however, the respondent has not established that O'Donnell advised employees that they could pay "$5.00 now or $50.00 or $55.00 later". O'Donnell denied it and his testimony was not unconvincing although he was not as clear on the applicant's initiation fee as he might have been. In cross-examination, it was not demonstrated that he made the alleged statement or that the applicant's policy required existing employees to pay a higher fee if they did not join before the applicant was certified. Spurr and Comeau were at the two meetings and they denied the statements were made. They understood that all existing employees had only to pay $5.00 and when a contrary view was put forward by some other employee after all the cards had been signed, Comeau went and checked and O'Donnel gave the proper clarification. The two employees called by the respondent could not be certain the representation was made and, on the evidence, we do not believe Hendirksen when he says this is why he joined the trade union. He had decided to support the applicant before the meetings were held and he assisted afterwards. McCallum was careful to point out that O'Donnell may not have understood his question to include initiation fees when he asked whether a non-member had to pay "all the money". We do accept that there was confusion after the second meeting and there may have been confusion immediately after O'Donnell spoke at each meeting. But we cannot find that O'Donnell intended to create this confusion and we are not willing to exercise our discretion and order a representation vote every time there is some confusion on the nature of union security, initiation fees and dues obligations. People who are asked to join a union are expected to be able to sort out most of the confusion by asking questions before they act. If they do not, this Board is reluctant to treat them any differently than they are treated when acting in a broader commercial context.
We are therefore prepared to accept the membership evidence submitted by the applicant subject to a consideration of the petition and counter-petition also filed with the Board before the terminal date. At the hearing it was announced that an examination of the respondent's records filed with the Board revealed twenty-seven employees employed within the bargaining unit as of the date of application. The applicant filed documentary membership evidence for seventeeen of these employees consisting of membership cards in the form of combination applications for membership and attached receipts. The applicant required the support of only fifteen employees for certification; however, there was also filed with the Board a timely but undated statement of desire or petition bearing the signatures of ten employees, five of whom had signed membership cards in the applicant and paid the required initiation fee. There was further filed with the Board four counter-petitions signed by employees who had both signed the petition and joined the applicant and who, by such counter-petitions, purported to withdraw their support from the petition and to reaffirm their support for the applicant.
The applicant union, in order to shorten the hearing, was prepared to withdraw its charges over the respondent's alleged conduct and accept that the petition was, subject to the existence of the counter-petition, a voluntary expression of employee wishes at the time it was signed. Counsel for the respondent, the petitioners and counsel for the applicant trade union in turn agreed that the counter-petition and the petitioners could argue that even if the counter-petition withstood the Board's scrutiny a representation vote should be ordered because of the vacillation of many employees.
On the matter of counter-petitions the Board in National Seal Division of Oil Seals Ltd., 63 CLLC ¶1 16,295 has said:
It is contended by counsel on behalf of the intervener, that no provision is made in the Act or in the Board's Rules of Procedure for filing or receiving counter petitions. On this basis, he argues that the Board has "no jurisdiction" to receive or consider them. Alternatively, he argues that even if the Board can and does receive and consider the counter petitions, they should not be given equal weight with the signatures on the petitions. In this respect, it is his contention that the signatures on the counter petitions only emphasize the fact that the employees are in a state of doubt. This doubt, he argues, must be resolved by a representation vote. While the Board's Rules of Procedure do not make any express provision for, or indeed mention any procedure for the filing of documents in the nature of the counter petitions filed in the present case, it does not follow that this, therefore, establishes that the Board has "no jurisdiction" to receive and consider them. In our view, the counter petitions clearly constitute evidence relating to membership within the meaning of section 77(j) of The Labour Relations Act, and of section 50 of the Board's Rules of Procedure. It is, therefore, abundantly plain to us, that so long as these documents are filed by the terminal date, they may be received and considered by the Board as evidence relating to membership under the general provisions of section 77(j) of the Act and section 50 of the Board's Rules of Procedure. It has, of course, long been the well-established practice of this Board to admit such counter petitions in evidence. Finally, we do not accede to the argument that merely because a certain type of evidence, relevant to proceedings before the Board, is not mentioned or no procedure of form for filing it is spelled out in the Act or the Board's Rules of Procedure, the Board is, therefore, without "jurisdiction" to receive it. Such evidence may, of course, be admissible (subject to the rules of evidence and any qualifications expressly or impliedly imposed by statute) on the sole ground that it is relevant to the determination of an issue before the Board.
The effect of counter petitions or revocations in respect of signatures placed on an earlier petition in opposition to an application for certification has been considered by the Board in the past and again recently in The Fleck Manufacturing Ltd. case, CCH Canadian Labour Law Reporter, vol.1, ¶1 16,236 at p. 13,201, as follows:-
In cases where revocations are filed in respect of signatures to a petition and it is evident to the Board from all the circumstances that the persons signing the revocations intended to revert to and reaffirm their original positions as reflected by the evidence of membership filed by the union, the revocations and original evidence of membership represent the most persuasive and reliable evidence of their wishes...
We are constrained to infer from the facts agreed to by all counsel in this case that the persons who signed the counter petitions did so with the intention of reverting to and reaffirming their original positions as reflected in their applications for membership and receipts filed by the union as evidence of membership. In our view, therefore, the most reliable evidence of the true wishes of the employees is that which is represented by the original evidence of membership submitted by the union and now reaffirmed by the counter petitions.
Mr. Comeau testified that after speaking to certain employees who had both joined the union and signed the petition, he called the applicant "to find out how the employees could sign back". He spoke with Mr. Al LeFort who explained the procedure. When Comeau had determined that enough employees were interested in affirming their support for the applicant, LeFort agreed to meet them "after hours" at 5:00 p.m. that day in the employees' parking lot of the respondent. Comeau stated that LeFort asked whether Comeau had "twisted their arms or anything" and Comeau assured him he had not. The evidence reveals that LeFort attended the premises as he promised. The four employees came to his car in pairs. He identified himself to them by his business card. He showed them the form of the counter-petition which he had filled in except for names and signatures. He read the form aloud to them and asked if they had any questions. He confirmed to them that they were under no pressure to sign and that no one would hold anything against them for refusing to sign. Each employee then expedited a counter-petition. Also adduced into evidence was a newspaper article from The Toronto Star dated February 5, 1982 entitled "Workers pay for dropping their union". The article, in somewhat one-sided terms, described the dilemma of employees who had "voted out" their union. This article was distributed by supporters of the applicant, on the urging of O'Donnell, in response to the meetings of employees held by the respondent's officials referred to earlier in this decision. Counsel for the respondent contended that the existence of the article in the workplace should be viewed as undermining the reliablility of the counter-petition. He therefore submitted that in light of the existence of the voluntary petition the Board should direct a representation vote. We cannot agree. Having regard to all of the circumstances we find that the counter-petitions constitute a volutary expression of employee wishes and that the most reliable evidence of the true wishes of employees is that which is presented by the original evidence of the membership submitted by the applicant and now reaffirmed by the counter-petitions. We think the newspaper article would have been understood for what it was and its content does not rise to a level of misrepresentation, coercion or intimidation. It would also appear that the respondent provoked the distribution of the article by meetings with employees held by its officials.
On the basis of all the evidence before it, the Board is satisfied that more than 55 percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on February 12, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER JAMES A RONSON;
I do not feel that the union organizer, Mr. O'Donnell, met the requirements as set out in Alex Henry & Son Ltd., [1977] OLRB Rep. May 288 when he discussed initiation fees at the meetings. I would order a vote.
We heard evidence from two employees that they understood that they could pay $5.00 now or more later. More telling was the evidence from a union witness that when a group of employees were trying to sign up an employee at the plant one of the group said "it would cost more if the employee did not sign now".
In his direct evidence Mr. O'Donnell was certain that he had fully explained his union's policy on initiation fees to the employees. However, when the Chairman attempted to question him on the specifics of the policy he was unable to answer the questions and said that union counsel or Mr. Al LeFort (a union organizer for 21 years) would have to answer them.
As a result of this evidence lam led to conclude that Mr. O'Donnell did not explain the policy as required the the Alex Henry case and is responsible for the confusion within the membership and the doubt cast upon the membership evidence.