[1982] OLRB Rep. June 937
0077-82-R Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 304, Applicant, v. Schenker Warehousing a Division of Schenker of Canada Limited, Respondent v. Group of Employees, Objectors
BEFORE: Ian Springate, Vice-Chairman, and Board Members W. H. Wightman and S. Cooke.
APPEARANCES: John McNamee and D. McDermott for the applicant; Don Robinson and Otto Hrboticky for the respondent; Hart M. Rossman, Q. C., Robin Dimmick, James Quinn and Keith Cooney for the group of employees.
DECISION OF VICE-CHAIRMAN, IAN SPRINGATE AND BOARD MEMBER S. COOKE; June 10, 1982
This is an application for certification.
On the date of the making of the application there were 76 employees in the bargaining unit. The applicant filed evidence of membership on behalf of 51 of these employees. The evidence of membership consists of applications for membership, with attached receipts indicating a payment of $1.00 to the union. This evidence of membership is supported by a duly completed Form 9, Declaration Concerning Membership Documents. Having regard to this material, and to the definition of a "member" of a trade union set out in section 1(1)(L) of the Act, we are satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on April 22, 1982, the terminal date fixed for this application and the date which we determine, 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.
There was also filed with the Board a statement of desire in opposition to the application signed by 61 of the respondent's employees. Statements of desire are not regulated by the Act as directly, or precisely, as union membership evidence. There is no statutory definition equivalent to section 1(1)(L), nor is there any requirement for a monetary payment (in the nature of consideration confirming the act of signing), or a declaration of regularity similar to Form 9. Nevertheless, the existence of statements of desire appears to be contemplated by both section 103(1)(j) of the Act and Rule 48 of the Rules of Practice; and in any event, the Board has a long established practice of accepting statements of desire and exercising its discretion under section 7(2) of the Act to order a representation vote where: the statements are voluntary, there is evidence given in accordance with Rule 48, and the statements contain the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt that the union's members continue to support its certification.
In the instant case, 38 of the 61 employees who signed the statement of desire in opposition to the application, had previously signed union membership cards indicating that they supported the union s certification. If we were satisfied that the union members who signed the statement of desire did so voluntarily, we would have before us two contradictory pieces of documentary evidence concerning the employees' wishes and would, in accordance with the Board's usual practice, exercise our discretion under section 7(2) of the Act and direct the taking of a representation vote to resolve the issue.
Before the Board will direct the taking of a representation vote on the basis of an employee statement of desire, it must be satisfied that when union members signed the document evidencing an apparent change of heart, they did so voluntarily. Often, as in the present case, a statement of desire in opposition to a trade union's certification will be signed by employees who have indicated their support for the trade union only a short time before; and while an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a statement opposing the union. Frequently, such documents are circulated by employees who, in their opposition to the union, will be objectively aligned in interest with the employer. In these circumstances, an employee may sign a statement of desire because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign a statement of desire because of suggestions that his continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case could one regard his signing of the statement of desire as truly voluntary, for in both cases it would result from a perceived threat to his job security.
Three employees testified with respect to the statement of desire, namely Mr. R. Dimmick, Mr. J. Quinn and Mr. K. Cooney. In giving their testimony, they referred to a number of managerial persons, some of whose positions they were not entirely certain of. No one in management was called to testify. Accordingly, the titles of certain of the managerial persons referred to below may be somewhat inaccurate. It is also possible that the names of these managerial persons may have been inadvertently misspelled.
The applicant filed its application for certification on April 13, 1982. However, it is clear that the respondent's management was aware of its organizing campaign prior to that date. lndeed, at a meeting between management and an employee committee held on or about April 8, 1982, Mr. Otto Hrboticky, the acting manager at the respondent's plant, asked why employees wanted a union, and also requested that employees hold off on the union in that Mr. Muller, the respondent's president, and Mr. Postuma, its comptroller, would soon be in town to make some proposals. Mr. Hrboticky added, however, that if employees wanted a union that was their right.
On Thursday, April 15, 1982, at about 9:15 a.m. management called a meeting of all the employees who were at work at the time. Attending on behalf of the respondent were Mr. Hrboticky, Mr. Muller, Mr. Postuma and Mr. Bribeck, whose title was not referred to at the hearing. Mr. Dimmick testified that someone from management stated at the meeting that the union had asked to have a representative present, but that the respondent had turned down the request since management wanted to hear why the employees thought it necessary to have a union. According to Mr. Dimmick, Mr. Postuma indicated that once the union came in some of the benefits currently enjoyed by the employees would not be guaranteed, and that the Christmas bonus would not be continued. The bonus has been paid to employees every year for the past few years, and has varied between $150.00 and $1,000.00 depending upon an employee's length of service. Mr. Dimmick also testified that the respondent indicated that it wanted employees to hold off with the union since it had some proposals for the employee committee although it could not announce what they would be.
On April 15th, after the meeting referred to above, Mr. Dimmick asked Mr. Hrboticky for assistance in opposing the union. Mr. Dimmick testified that Mr. Hrboticky indicated that he could not assist him, but that he did show him a letter from the respondent's lawyer which listed the names of six lawyers. One of these lawyers was subsequently retained by the group of objecting employees to assist them with respect to the statement of desire.
The statement of desire was circulated by Mr. Cooney, Mr. Dimmick and Mr. Quinn. Mr. Cooney is a "bond Keeper", one of the respondent's most senior employees. Mr. Cooney testified that it is common knowledge that he is a friend of Mr. Hrboticky. Mr. Dimmick and Mr. Quinn are both lead hands, and at one point Mr. Quinn had been employed as a foreman. Although as lead hands Mr. Dimmick and Mr. Quinn do perform some of the same work as other employees, they spend a majority of their time supervising and assigning work to other employees and taking care of administrative details. Mr. Quinn supervises eleven employees, Mr. Dimmick fifteen. Neither gentlemen can discipline employees although they both make reports about employees to foremen. It appears that no foremen are in the plant during the evening shift, and accordingly, at times there is no one present who is more senior than Mr. Dimmick or Mr. Quinn.
The statement of desire filed in this matter was not the first such statement or "petition" to be circulated. On April 15th, the day of the meeting called by management, Mr. Quinn drafted a document in opposition to the applicant. The document was typed by "Donna" who takes calls for the foreman and who, in Mr. Quinn's words acts "in a limited scope" as the foremen's secretary. According to Mr. Dimmick, Mr. Quinn circulated this petition on the evening shift on April 15th, at a time when no one more senior to him was in the plant. Mr. Quinn testified that on April 15th he left the document under the desk blotter of Mr. Terry Craft, a foreman, and that as far as he knew it remained there until Saturday, April 17th, when he believed Mr. Dimmick removed it.
The document filed with the Board appears to have started to be circulated on April 19th during the evening shift after Mr. Dimmick had made a general announcement to the employees he supervised that he had a document against the union which they could sign in the shipping office. According to Mr. Dimmick, at this time a number of employees asked him questions, including questions about possible lay-offs. Earlier, a fork-lift operator, Mr. Dave Favro, had gone around the plant telling employees that Inglis, one of the respondent's largest customers, had withdrawn some of its business due to the union and would withdraw all of its business if the union came in. For about an hour on April 17th Mr. Conney had accompanied Mr. Favro as he went about spreading this message to employees. As it happens, on April 16th, Inglis had in fact discontinued one of the respondent's lines.
The employees signed the statement of desire in the shipping office as well as at various locations both in and away from the respondent's premises. No employees signed in the presence of management. In cross-examination, Mr. Dimmick indicated that while obtaining signatures he advised some employees that if the union "got in" there would probably be lay-offs.
Given the facts set out above, we are not satisfied that when the employees who had previously signed union membership cards, signed the statement of desire, they were expressing a genuine and voluntary change of heart. The employees signed the document after management had indicated that employees stood to lose existing benefits if the union was certified to represent them. Further, a lead hand had advised employees that lay-offs were likely to occur if the union got in and another employee, accompained for a while by Mr. Cooney, had indicated that a major customer would withdraw its business if the applicant were certified. Two of the three persons circulating the document were lead hands who at times were the most senior people in the plant, and the third, Mr. Cooney, was known to be a friend of Mr. Hrboticky. A similar document circulated earlier by one of the two lead hands had been typed by the foremen's secretary and left on a foremen's desk. In these circumstances, employees may well have signed the statement of desire out of a reasonable concern that the applicant's certification would result in a loss of benefits and lay-offs as well as a concern that through the lead hands and Mr. Cooney, management would come to know which employees had refused to sign the document. In these circumstances, we decline to exercise our discretion to direct the taking of a representation vote.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
The majority decision sets out the, by now, well known rationale employed by the Board in divining the state of mind of employees to be affected by its decisions.
My concerns over the practice of eschewing the use of a secret ballot in preference to other indicia of employees wishes are perhaps equally well known and need not be repeated here. I do, however, express particular concern over two points:
a) the unquestioning assumption that an employee's support for a trade union is necessarily held more confidentially than opposition to a trade union as well as the notion that the revelation of this information is of such consumate importance, and
b) the notion that persons included in the prospective bargaining unit but with social or other ties to a member of supervision, should be precluded from giving full expression to any views they may have at the risk of their comments proving fatal to a statement of desire.