John D. Weed v. Local #419 Teamsters, 1982 CanLII 871

Ontario Labour Relations Board

[1982] OLRB Rep. June 816

2615-81-R John D. Weed, Applicant, v. Local #419 Teamsters, Respondent, v. Browning - Ferris Industries, Intervener

BEFORE: Pamela C. Picher, Vice-Chairman and Board Members W. H. Wightman and S. Cooke.

APPEARANCES: John D. Weed on his own behalf; Ken Petrvshen and Bud Bodkin for the respondent; R. A. Werry for the intervener.

DECISION OF VICE-CHAIRMAN PAMELA C. PICHER AND BOARD MEMBER S. COOKE; June 14, 1982

1. The applicant has applied under section 57 of the Labour Relations Act for a declaration that the respondent union no longer represents the employees in the bargaining unit for which it is the bargaining agent.

2. The applicant, Mr. John D. Weed, filed a timely statement of desire in opposition to the union bearing the signatures of 20 out of the 36 employees in the bargaining unit. The petition, therefore, bears a sufficient number of signatures to cause the Board to conclude that not less than forty-five per cent of the employees in the bargaining unit signed the document.

3. A second and subsequent statement of desire or counter-petition was also filed with the Board. Through this document which bears the names of 28 of the 36 employees in the bargaining unit, the signatories purport to re-affirm their support for the trade union. The preamble to the document reads as follows:

WE, THE UNDERSIGNED EMPLOYEES OF BROWNING -FERRIS INDUSTRIES LTD., HEREBY SIGNIFY THAT WE DO WISH TO BE REPRESENTED BY THE TEAMSTERS LOCAL UNION NO. 419 OUR BARGAINING AGENT, AND WE WISH TO RE-AFFIRM OUR MEMBERSHIP IN TEAMSTERS LOCAL UNION NO. 419.

This re-affirmation document was circulated between March 24th and March 26, 1982. March 29, 1982 was the terminal date. The terminal date is the date set by the Board pursuant to section 103(2)(j) of the Act as the date by which evidence of signification from employees that they no longer wish to be represented by a trade union must be presented to the Board on an application for a declaration terminating bargaining rights. The document of re-affirmation contains the names of twelve persons who had earlier affixed their signatures to the original statement of desire in opposition to the trade union.

4. At the commencement of the hearing counsel for the union stated that he was not challenging the voluntariness of the statement of desire filed in opposition to the union. He accepted that the signatures on that statement of desire were affixed voluntarily. In light of the union's admission relating to the voluntariness of the applicant's statement of desire, the applicant stated he did not wish to call evidence in support of his application notwithstanding that the union proposed to call evidence to establish the voluntariness of its counter-petition.

5. Both the applicant and counsel for the company maintain that a counter-petition or re-affirmation document filed in support of a trade union is irrelevant and without effect on a termination application. They maintain that once the Board concludes that not less than forty-five per cent of the employees in a bargaining unit have voluntarily signed a statement of desire in opposition to a trade union by the terminal date set by the Board, the Board is obligated under section 57(3) of the Act to order the taking of a representation vote. They argue that the Board must order the vote whether or not there is also filed with the Board a subsequent voluntary counter-petition document containing a significant number of signatures of persons who had earlier signed the statement of desire in opposition to the trade union. Section 57(3) of the Act provides as follows:

Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)6) [the terminal date] that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

[emphasis added]

Counsel for the company focused on the word "shall" in section 57(3), arguing that the Board is without discretion to decline to order a representation vote once it is satisfied that not less than 45 per cent of the employees in the bargaining unit, by the terminal date, have voluntarily signified in writing that they no longer want to be represented by the trade union.

6. In assessing the position taken by the applicant and employer, a comparison may be drawn between section 7(2) of the Act relating to the disposition of applications for certification and section 57(3) relating to applications for the termination of bargaining rights. Section 7(2) provides as follows:

If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

[emphasis added]

Counsel for the company did not dispute the relevance on an application for certification of documents of revocation or re-affirmation of union support obtained subsequent to a statement of desire filed in opposition to the trade union. On an application for certification the voluntariness of a numerically relevant statement of desire in opposition to the trade union is regularly considered by the Board in deciding whether to exercise the Board's discretion and order the taking of a representation vote notwithstanding that the union has membership support from more than 55 per cent of the employees in the bargaining unit. Consideration of a numerically relevant subsequent counter-petition or document of re-affirmation of union support is further viewed by the Board as critical to the exercise of the Board's discretion under section 7(2) of the Act.

7. In contrast to the certification situation, counsel for the company argues that on a termination application the Board is without discretion and must order the taking of a representation vote once it has before it a voluntary statement of desire in opposition to the trade union from not less than 45 per cent of the employees in the bargaining unit. Accordingly, he argues, a counter-petition or revocation document is completely irrelevant on an application for termination.

8. Counsel for the union views the operation of section 57(3) of the Act differently. He argues that the section directs the Board to assess the evidence of opposition to the trade union as at the terminal date. Accordingly, he maintains, even if not less than 45 per cent of the employees in a bargaining unit have voluntarily signed a document in opposition to the trade union by the terminal date, if a sufficient number of the same people subsequently sign a document revoking their signatures on the earlier statement of desire and re-affirm their support for the trade union then, depending on the degree of overlap, the Board may conclude that as at the terminal date, less rather than not less, than 45 per cent of the employees had voluntarily signified in writing that they no longer wanted to be represented by the trade union. Counsel emphasized that in determining the level of opposition to the trade union the Board focuses on the terminal date and has traditionally considered the last voluntary document prior to the terminal date as the most reliable expression of an employee's wishes.

9. The position taken by the applicant and employer in this case was considered and specifically rejected by the Board in V.S. Services Q.E. Hospital, [1978] OLRB Rep. March 323. The Board at p. 324 of its decision stated:

The Board has consistently ruled that statements of re-affirmation, if filed within the time requirements of Section 49(2) [now 57(3)] are evidence of employee wishes which must be considered by the Board in the exercise of its authority under Section 49(3) [now 57(4)] of the Act.

(For other termination cases where the Board has considered a document of re-affirmation of union support filed subsequent to a statement of desire filed in opposition to the trade union see Mitten Industries Galt Limited, [1976] OLRB Rep. March 76 and Redpath Sugars Ltd., [1974] OLRB Rep. July 502).

10. A statement of desire in opposition to a trade union is presented to the Board on an application for certification for a different purpose than a similar statement of desire filed in support of an application for the termination of a union's bargaining rights. The relevance of a statement of desire filed in opposition to a trade union on an application for certification is limited to the exercise of the discretion given the Board in section 7(2) to order the taken of a representation vote notwithstanding membership evidence in excess of 55 per cent of the employees in the bargaining unit. A numerically relevant voluntary statement of desire may cause the Board to entertain sufficient doubt as to the reliability of the membership evidence to cause the Board to seek the confirmation of a representation vote. The statement of desire in opposition to the trade union does not cancel evidence of trade union membership filed by the union on behalf of a person who has subsequently signed the statement of desire in opposition to the union. (See Royal Canadian Yacht Club, Board File #0780-80-R; application for judicial review dismissed, (1981), 1981 CanLII 2935 (ON HCJDC), 129 DLR (3d) 554; application for leave to appeal refused April 26, 1982). Accordingly, if a union has filed membership evidence for between 45 and 55 per cent of the employees in the bargaining unit, the petition is irrelevant. It does not reduce the membership evidence below 45 per cent and the union would still be entitled to a representation vote even if the petition proved to be voluntary.

11. In contrast to the certification situation, on an application for termination the statement of desire in opposition to the union is not filed with the Board for the purpose of affecting the exercise of the Board's discretion. Rather its purpose is to establish a sufficient level of opposition to the union to entitle the applicant to the taking of a representation vote pursuant to section 57(3) of the Act. In both situations, though, when the Board looks as a statement of desire it is to evaluate employee wishes.

12. When a counter-petition of revocation or re-affirmation is filed with the Board on an application for certification it is also considered relevant to ascertaining employee wishes in order to determine whether sufficient doubt has in fact been cast, by the petition, on the reliability of the membership evidence so as to cause the Board to exercise its discretion and order the taking of a representation vote. In National Seal Division of Oil Seals Ltd., 63 CLLC ¶16, 295 the Board at pp. 1224- 1225 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.

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, ¶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.

On this basis the Board has long held that in ascertaining employee wishes for the purpose of the exercise of its discretion in section 7(2), counter petitions re-affirming support for a union are as relevant as a petition against the union standing on its own. (See also Swingline of Canada Ltd., [1978] OLRB Rep. Mar. 323; The Great Atlantic and Pacific Tea Company Limited, [1970] OLRB Rep. Dec. 934; White Die Casting Company Limited, [1970] OLRB Rep. Dec. 948 and Frito-Lay Canada Ltd., [1981] OLRB Rep. May 538.).

13. To draw a further comparison between the certification and termination situation, on an application for certification the effect of the counter-petition is to re-affirm the earlier filed membership evidence. On an application for termination, on the other hand, the counter-petition stands on its own as evidence of union support.

14. As with the certification situation, on an application for termination, where the Board is also required to ascertain employee wishes, the counter petition expressing reaffirmed support for the trade union is as relevant as the petition against the union. In section 57(3) of the Act the Board is directed to "ascertain… whether not less than 45 per cent of the employees… have voluntarily signified in writing at [the terminal date] that they no longer wish to be represented by the trade union. The Board concludes that this section requires the Board to determine the percentage of employees who at the terminal date no longer wish to be represented by the union. The Board further concludes that when it is in receipt of a document, by the terminal date, purporting to express the wishes of employees to continue to be represented by the trade union, it is incumbent on the Board to give it full consideration in determining under section 57(3) "whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at [the terminal date] that they no longer wish to be represented by the trade union…” (emphasis added). A numerically relevant counter-petition received by the Board by the terminal date purporting to express the wishes of employees on the question of union representation cannot be ignored by the Board as urged in this case by the applicant and employer. It is evidence which must be considered by the Board to determine the state of employee wishes as at the terminal date.

15. In the instant matter, therefore, the Board has before it for consideration a statement of desire in opposition to the trade union, which the union acknowledges was voluntary at the time it was signed, and a subsequent counter-petition filed by the union prior to the terminal date re-affirming support for the union bearing the signatures of 12 persons who had earlier signed the statement of desire in opposition to the union.

16. The Board heard evidence relating to the voluntariness of the counter-petition. Mr. Robert MacLellan and Mr. Fred Dehne, both union stewards and employees of Browning & Ferris Industries Ltd., testified to the origination, preparation and circulation of the counter-petition re-affirming support for the union. The Board concludes from the evidence that the employees who signed the counter-petition were fully aware of the nature and purpose of the document and that they attached their signatures without any threats or undue pressure.

17. It has, on occasion, been suggested that a union as exclusive bargaining agent holds a position of influence over employees in a bargaining unit which would place undue pressure on employees who are asked to sign a counter-petition. In V.S. Services Q.E. Hospital, supra, at p. 325 the Board considered and rejected this submission:

Counsel for the applicant argued that in the circumstances of a termination application the union, as the exclusive bargaining agent, enjoys a position of influence over the employees in the bargaining unit which is analogous to the position of influence enjoyed by the employer. It is his submission that the evidence which establishes that the president of the respondent union approached bargaining unit employees individually during working hours, should cause the Board to find that "tacit, unspoken pressure" was exerted such that the statement of reaffirmation does not represent the true wishes of those who signed it. The Board is unable to accept the submission of counsel in this regard. A trade union which holds exclusive bargaining rights does not enjoy a position of influence over the employees in the bargaining unit as does the employer who can hire, fire or otherwise affect an employee's career. The very fact that the bargaining rights held by the union can be terminated by bargaining unit employees underscores the fundamental difference between the position held by the employer on the one hand and the trade union on the other.

In the Board's opinion the issue of undue influence from a union is a question of fact to be considered in each case and is clearly not a matter of presumption. In the instant situation the Board is satisfied that no undue influence was exerted by the union in the process of gathering signatures on the counter-petition. The Board is fully satisfied, therefore, that the counter-petition represents the voluntary wishes of its signatories.

18. When faced with two voluntary yet conflicting documents, a petition and counter-petition, with overlapping signatures, how does the Board determine the relative weight to be accorded each document and draw a conclusion as to the employees' wishes as at the terminal date as required by section 57(3) of the Act? A number of various approaches could be taken. Firstly, the Board could inquire into the circumstances relating to both the petition and counter-petition and decide on the basis of the evidence which is the more voluntary and thus the more reliable reflection of employee wishes. Secondly, and particularly on an application for certification, the Board could decide that the mere existence of two conflicting documents with overlapping signatures reflects sufficient confusion among the employees to justify the taking of a representation vote. Thirdly, the Board could look to the last voluntary expression of desire prior to the terminal date as the most reliable indicator of employee wishes. Having carefully considered the merits of these three options, the Board is satisfied that in assessing petitions and counter-petitions the third option is the best option.

19. Petitions and counter-petitions are documents which the Board admits as evidence of employee wishes despite their hearsay nature. In order to protect the secrecy of an employee's desire with respect to union representation as ensured by section 111(1) of the Act, the Board ascertains the voluntariness of the expressed wishes of each signatory on a petition and counter-petition through evidence given by the person(s) who circulated the document as to how the signatures were obtained. To go beyond a general conclusion of voluntariness to determine which of two voluntary yet conflicting documents is the more voluntary, the Board would have to entertain further evidence from individual employees as to why they signed two documents expressing opposing wishes. The critical problem with this procedure is that it would expose the identity of numerous individual signatories and cause them to reveal whether they do or does not wish to be represented by a trade union. Section 111(1) of the Act protecting the disclosure of an employee's wishes provides as follows:

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. R.S.O. 1970, c. 232, s. 100(1).

20. While the Board has the authority to require an individual to answer a question that would reveal his desires regarding union representation, the Board is most reluctant to do so unless absolutely necessary. In view of the alternate avenues available for ascertaining employee wishes as set out above and having regard to the spirit of section 111(1) of the Act, the Board has chosen not to seek to measure which of two or more conflicting documents is the most voluntary.

21. The second approach that the Board could take and one that would not reveal the desires of individual employees would be to conclude from the mere existence of two conflicting and overlapping documents that there is sufficient confusion to cause the Board to order the taking of a representation vote. To take this approach would be to adopt an arbitrary procedure which would ignore the numerous reasons why an employee might have two conflicting documents and yet not be confused. An employee, for example, who in fact supports the union may decide to sign a petition being circulated against the union simply "to protect himself", fully intending to subsequently sign a document in support of the union which is designed to erase the effect of his signature on the original statement of desire. Another employee may sign a statement of desire against the union because at the time he signs it he does not in fact support the union. After giving further thought to the situation, however, he may change his mind and decide he would like to continue to be represented by the trade union and thus seek to erase his signature from the petition against the union by signing a counter-petition supporting the union. Given these variables the Board is not prepared to conclude that the mere existence of two conflicting documents either reflects confusion among employees or requires the taking of a representation vote to ascertain employee wishes.

22. The third option for measuring employee wishes from two voluntary yet conflicting documents (that is a petition and counter-petition) is to consider the last voluntary expression of an employee's desires prior to the terminal date as the most reliable expression of his wishes. This procedure which the Board has long followed avoids the arbitrariness of the second option of adopting a policy of ordering a vote on the mere existence of two conflicting documents. As well, and in contrast to the first option of adopting a policy of weighing relative degrees of voluntariness to decide which of two documents is the more voluntary, it protects the secrecy of an employees' wishes regarding union representation as intended by section 111(1) of the Act. Moreover, and most importantly, the Board is satisfied that the last expression of desire prior to the terminal date which is voluntarily made, as determined through objective evidence of the circumstances surrounding the origination, preparation and circulation of the statement of desire is generally the most reliable and probative evidence of employee wishes. On the basis of the considerations set out above the Board has traditionally taken this third approach to ascertaining employee wishes from two voluntary yet conflicting documents. There is nothing in the instant case to cause the Board to depart from its well established practice.

23. We conclude on the evidence presented that twelve persons who voluntarily signed the petition against the union, subsequently voluntarily re-affirmed their support for the union prior to the terminal date. The effect of their subsequent declaration of support for the union is to remove their names from the list of those who as at the terminal date have voluntarily indicated that they no longer wish to be represented by the trade union.

24. On the evidence submitted to the Board therefore we conclude that less than 45 percent of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the respondent union on May 29, 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 the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent union under section 57(2) of the Act.

25. Accordingly, the application for termination is dismissed.

DECISION OF BOARD MEMBER W. WIGHTMAN;

1. As has been argued in other cases, it is my view that, at best, a counter-petition underscores the questionable value of membership evidence and petitions as measurements of the wishes of any given group of employees and the preferability of a supervised secret ballot as the means of making such determinations.

2. For this reason I would have granted a vote.