Canadian Union of United Brewery, Flour Cereal, and Distillery Workers v. Uxbridge Beverages Ltd., 1982 CanLII 890

[1982] OLRB Rep. June 961

0143-82-R Canadian Union of United Brewery, Flour Cereal, and Distillery Workers, Applicant, v. Uxbridge Beverages Ltd., Respondent, v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: F. G. Posen and Bob Hill for the applicant; D. I. Wakely, H. F. Orser, and R. J. Marshall for the respondent; Cohn Still, David Mather and Henry Prozewko for the objectors.

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; June 4, 1982

1. This is an application for certification.

[bargaining unit descriptions omitted]

6. Having further regard to all of the evidence before it, the Board finds that there were 53 employees in the bargaining unit at the time the application was made, excluding William Andrechuk whose status is in dispute. Regardless of whether Mr. Andrechuk is included in or excluded from that bargaining unit, the applicant would normally need the support of only 30 of those 53 or 54 employees to be entitled to be certified as bargaining agent for that unit without a representation vote. The applicant filed documentary evidence for 33 of those employees in the form of combination applications for membership and attached receipts. However, there was also filed with the Board a timely statement of desire or petition in opposition to the certification of the applicant, bearing the signatures of 34 employees, 10 of whom had signed membership cards in the applicant and paid the required initiation fee. There were also filed with the Board 9 counter-petitions signed by 9 employees, 8 of whom had both signed the petition and joined the applicant, and who, by such counter-petitions, purported to withdraw their support for the petition and to reaffirm their support for certification of the applicant.

7. The effect which the Board has consistently given to voluntary counter-petitions, which are also referred to in the Board's jurisprudence as revocations or reaffirmations of support, is aptly described in the following passage from National Seal Division of Oil Seals Ltd. 63 CLLC ¶16,295:

“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 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.”

(See also Leon's Furniture Limited, [1982] OLRB Rep. March 404; Swingline of Canada Ltd., [1973] OLRB Rep. March 159; The Great Atlantic and Pacific Tea Company Limited, [1970] OLRB Rep. Dec. 934; and White Die Casting Company Limited, [1970] OLRB Rep. Dec. 948.)

8. After the Board had heard evidence and argument with respect to the counter‑petitions, the parties advised the Board that in order to expedite the hearing of this application, they were prepared to adopt the approach endorsed by the Board in Leon's Furniture, supra, by agreeing that the petition was, subject to the existence of the counter-petitions, a voluntary expression of employee wishes at the time it was signed. Thus, none of the parties sought to adduce any evidence with respect to the origination or circulation of the petition, nor was there any suggestion that, if the Board found (a sufficient number of) the counter-petitions to be voluntary, there were any circumstances which should, nevertheless, prompt the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken.

9. Bob Hill, the Executive Secretary of the applicant union, personally witnessed the signatures of 8 of the 9 employees who signed counter-petitions. Each of those typewritten documents reads as follows:

“Ontario Labour Relations Board

File #0143-82-R

Mr. D. K. Aynsley,

Registrar,

Ontario Labour Relations Board,

400 University Avenue,

TORONTO, Ontario.

Dear Mr. Aynsley,

RE: APPLICATION FOR CERTIFICATION EXBRIDGE BEVERAGES LTD., UXBIRDGE, ONTARIO AND CANADIAN UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS.

On or about [a specific date], I signed a petition addressed to the Board in opposition to the Application For Certification made by the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers.

Of my own free will, I have reconsidered and hereby request that the Ontario Labour Relations Board disregard my signature on any statement of desire filed with the Board in opposition to this Application For Certification, bearing a date prior to this date.

It is my true wish that the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers represent me as bargaining agent in my relationship with Uxbridge Beverages Ltd.

Dated at [a specified municipality] Ontario, this [specified] day of April 1982.

Yours truly,

[signature of employee]

Signature witnessed by

[Signature of' Witness]”

The Board is satisfied from its comparison of the dates specified on the counter-petitions witnessed by Mr. Hill, as confirmed by his testimony, and the dates specified on the petition, that the 8 counter-petitions witnessed by Mr. Hill were signed following the signing of the petition in opposition to the applicant.

10. Mr. Hill drafted the counter-petitions on April 26, 1982 after he became aware that a petition was being circulated in opposition to the applicant and that some of the employees were upset because "they'd been told one thing by [Mr. Hill] and another thing by management". Although the evidence concerning precisely what was told to employees by the management of the respondent (which elected to call no evidence in these proceedings) was rather sketchy, it appears that as a result of a meeting which management held with employees, at least some of the respondent's employees had concerns about what might happen to their "seniority" as a result of a "transaction in the works" whereby the respondent might purchase an operation in Peterborough for which the applicant has bargaining rights. Since there are "a lot of young employees" employed by the respondent in Uxbridge, a number of them were concerned that a merger of the Uxbridge and Peterborough seniority lists might disadvantage them. In order to "clear up some of the questions that the people in Uxbridge seemed to have because of the meeting management had with them" and in order to give employees an opportunity to sign counter-petitions, Mr. Hill arranged for a meeting to be held at the Navy Club in Oshawa commencing at 7:30 p.m. on April 27, 1982. Employees were notified of that meeting through telephone calls made by one of their fellow employees at the request of Mr. Hill.

11. In 1978 while Mr. Hill was the applicant's Assistant Executive Secretary, the applicant was involved in another certification application in respect of the employees of the respondent at Uxbridge. It was the uncontradicted evidence of Mr. Hill that a number of the respondent's present employees were familiar with the petition and counter-petition process as a result of their involvement in that earlier application. Prior to the meeting at the Navy Club on April 27th, Mr. Hill telephoned one of the employees whom he had known since 1978 and asked him if he was coming to the meeting. Mr. Hill told the Board that he knew the employee in question "has a problem getting to meetings". That employee told Mr. Hill that he would not be going to the meeting but that he "would like to see" him. When Mr. Hill attended at the residence of that employee at approximately 5:30 p.m. on April 27th, the employee told him that he had signed a petition and "wanted to sign something to get his name off the petition". Accordingly, Mr. Hill provided him with one of the counter-petitions and witnesses his signing of that document.

12. A second employee signed a counter-petition at his (the second employee's) home in the presence of Mr. Hill approximately one-half hour before the April 27th meeting. That employee, who had also been employed by the respondent in Uxbridge during the applicant's 1978 organizational drive, had telephoned Mr. Hill on April 26, 1982 and arranged for Mr. Hill to attend at his residence on the following day. After signing the counter-petition, that second employee attended the meeting at the Navy Club.

13. The meeting at the Navy Club on April 27th was conducted by Mr. Hill, who answered employee questions about matters that were of concern to them. In particular, Mr. Hill assured the employees that if the application for certification was successful, "they would have the right to decide what their destiny would be, not the people in Peterborough." There were approximately 16 employees in attendance at that meeting. Near the end of the meeting, which lasted for approximately one and one-half hours, 6 of those employees signed counter-petitions in the presence of Mr. Hill, who witnessed each of their signatures.

14. Following the meeting, Mr. Hill gave the 8 counter-petitions which he had witnessed to Dave MacMillen, an organizer in the employ of the applicant, for transmittal to the Board. Those 8 counter-petitions were sent to the Board by registered mail on April 29, 1982, the terminal date fixed for this application, together with a further counter-petition which purports to be witnessed by Mr. MacMillen. Since neither Mr. MacMillen nor anyone else gave evidence before the Board from his personal knowledge and observation with respect to the circumstances concerning the origination of that (ninth) counter-petition, and the manner in which the signature on it was obtained, the Board will give no weight to that document.

15. Although counsel for the objectors contended that there was "a grave doubt" concerning the credibility of Mr. Hill, the Board found Mr. Hill to be a credible witness whose uncontradicted evidence we accept without reservation. Counsel for the respondent contended that the Board should disregard the counter-petitions because Mr. Hill was unable to "give any evidence of why [the employees] would sign" those documents and could not "shed any light on what was said to them by the unnamed person [who telephoned them] to get them to come to the meeting". He further submitted that the Board should give no weight to the counter-petitions because there is a "gap" in the evidence with respect to the custody of those documents due to Mr. MacMillen's failure to testify concerning the time during which the counter-petitions were in his possession prior to their transmittal to the Board by registered mail. However, the Board is satisfied on the evidence before it that the 8 counter-petitions witnessed by Mr. Hill reflect a voluntary expression of the wishes of the employees who signed them and that the most reliable evidence of the true wishes of employees is that which is presented by the original evidence of support for the certification of the applicant filed with the Board in the form of combination applications for membership and receipts, and subsequently reaffirmed by those counter-petitions. Although some of the employees who signed both a membership card and the petition did not subsequently sign a counter-petition, the number of such employee is not sufficient to prompt the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken.

16. As stated by the Board in Fleck Manufacturing Ltd., supra, the "reasons why employees want or do not want a union is, of course, not a relevant consideration of the Board except to the extent that the desires of such employees for or against the union may have been improperly influenced, e.g. by threats, intimidation or misrepresentation." There is nothing in the circumstances of this case which suggests that any of the employees who signed the 8 counter-petitions witnessed by Mr. Hill were influenced to sign them by threats, intimidation or misrepresentation. Even if the Board were to hypothesize that the employee who telephoned his fellow employees to notify them of the April 27th meeting might have said something improper to one or more of them, such as stating that they would lose their jobs unless they signed a counter-petition, it is clear that those employees had an ample opportunity at the meeting (or during the personal meetings which two of them had with Mr. Hill at their respective residences) to question the validity of any such statements and to obtain an authoritative answer from Mr. Hill, who is a high ranking official of the applicant and an experienced union organizer. Moreover, the fact that 10 of the 16 employees who attended that meeting elected not to sign counter-petitions is inconsistent with the existence of intimidation, coercion or other improper conduct.

17. The Board is also of the view that the failure of Mr. MacM illen to testify before the Board with respect to his custody of the 8 counter-petitions witnessed by Mr. Hill does not affect the voluntariness of those documents. In this regard, the following comments by the Board in Fuller's Restaurant, [1980] OLRB Rep. Sept. 1289, are instructive:

“18. The Board has held that the requirement for first-hand evidence of the ‘circumstances surrounding the origination, preparation and circulation of a statement of desire places the onus on those wishing to establish the voluntariness of the statement to call evidence of how each of the signatures was obtained as well as evidence detailing the physical preparation and the actual delivery of the document to the Board’. (See Formosa Spring Brewery, [1974] OLRB Rep. Oct. 696.) Because the onus is on the petitioners to satisfy the Board as to the voluntariness of the statement, and because the signing of a statement against the union after signing a card in support represents a sudden change of heart, any gap in the evidence from preparation to delivery to the Board may prove fatal in any given case. It is for this reason that the Board has put petitioners on notice as to the extent of the evidence which may be required. A gap in the evidence relating to the delivery of the statement to the Board when considered in conjunction with other gaps in the evidence relating to custody of the document or in conjunction with evidence suggesting company involvement may cause the Board to find that it has not been satisfied as to the voluntariness of the statement. The Board, however, has never rejected a petition simply for the reason that it lacked first-hand evidence of the delivery of the document. The issue is one of voluntary expression and if the Board is satisfied that the origination and preparation of the statement is free of employer interference and is further satisfied that each of the signatures has been obtained in circumstances which would not thwart free expression and where, as in this case, a legitimate reason exists for the absence of the person who mailed the petition, the Board would be hard pressed to find that it had not been satisfied as to the voluntariness of the statement. The Board was faced with a gap in the evidence relating to delivery in Weston Bakeries Limited, [1979] OLRB Rep. Dec. 1309 (a termination of bargaining rights case) and in refusing to reject the petition filed in support of that application pointed out that there was 'no suggestion that the petition may at some point have fallen into the hands of management' and further, 'that the deficiencies in the evidence with respect to the matter of custody occur subsequent to the obtaining of all signatures on which the Board is relying and the evidence does not disclose that the petition was being handled so loosely as to have given employees the impression that it might at some point come to the eye of management’.”

(emphasis added)

(In that decision, which followed a judgment dated March 11, 1980 (reported at 8O CLLC 14,021) in which the Supreme Court of Ontario quashed the Board's initial decision certifying the applicant, the Board found a petition filed by the objectors to be a voluntary expression of the wishes of those who signed it, despite the "lack of first-hand evidence of its delivery to the Board".) Although those comments were made in the context of a petition, they are equally applicable with respect to counter-petitions. As noted above, Mr. Hill, the Executive Secretary of the applicant, gave the 8 counter-petitions that he had personally witnessed to Mr. MacMillen, an organizer employed by the applicant, who subsequently mailed them to the Board by registered mail. As stated by the Board in Fuller's Restaurant (supra), where documents such as petitions or counter-petitions disappear from sight while they are being signed without any explanation concerning their whereabouts, such gaps in the evidence concerning custody of the documents may lead the Board to infer that the handling of the documents was so loose or careless that they should not be relied upon as evidence of the voluntary wishes of employees. In the case of a petition, the Board is particularly concerned that the document may come to the attention of management during such "gaps" and that employee perceptions of the way in which the petition is being circulated may lead them to sign the document out of fear that it may come into the possession of a member of management who may infer from the absence of certain employees' signatures that they are union supporters and penalize them as a result. No corresponding fear arises in the context of a counter-petition since employees can safely assume that union officials will not bring to the attention of management that they have signed a union card or counter‑petition affirming their support for the certification of the union. (While peer pressure and "salesmanship" may often be operative factors which assist union supporters in persuading employees to sign documents in support of certification such as membership cards and counter-petitions, similar factors are also frequently operative in the context of petitions circulated by employees opposed to certification. The presence of such factors, which are inherent in the certification process, does not, by itself, render such documentary evidence involuntary or otherwise unreliable.) Mr. MacMillen's possession of the 8 counter-petitions in question did not commence until after they had been signed by the employees and delivered to him by Mr. Hall. There is nothing to suggest that any of the 8 signatories were aware that the documents would be given to Mr. MacMillen, but even if they had been aware that this would happen, it is difficult to see how their decision to sign a counter-petition would have been affected by such information. It is not apparent to the Board how an employee would be coerced, intimidated, or in any other way deprived of the ability to voluntarily express his true wishes with respect to the certification of the applicant as his bargaining agent, by knowledge that the union official who witnessed his signature on a counter-petition intended to give those documents to another official of the applicant for transmittal to the Board by registered mail.

18. On the basis of all the evidence before it, the Board is satisfied that regardless of whether William Andrechuk (whose status, as noted earlier in this decision, is in dispute) is included in or excluded from the bargaining unit, more than fifty-five per cent of the employees in bargaining unit #1 at the time the application was made, were members of the applicant on April 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 membership under section 7(1) of the said Act. Thus, the applicant's right to certification with respect to bargaining unit #1 cannot be affected by the Board's ultimate decision as to the inclusion in or exclusion from the bargaining unit of William Andrechuk. Moreover, for the reasons set forth above, the Board, in the exercise of its discretion under section 7(2) of the Act, declines to direct that a representation vote be taken in the circumstances of this case.

19. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, and pending the final resolution of the composition of bargaining unit #1, certifies the applicant as the bargaining agent for all employees of the respondent in Uxbridge, Ontario, save and except foremen, those above the rank of foreman, office staff, persons regularly employed for not more than twenty-four hours per week, and students employed during the school vacation period, and pending the final determination of his employment status, excluding as well William Andrechuk.

20. A final certificate must await the final determination of the composition of the bargaining unit.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

1. I disagree with the majority and would have ordered a vote.

2. Contrary to the opinion expressed at paragraph 17 of the majority decision, I believe that in contemporary society peer pressure and/or union institutional pressure can be very real and that indeed the concerns which Board practice reflect in the rigorous search for employer influence or awareness in the case of a petition (i.e., statement of desire not to be represented by a particular union), should be of parallel concern in the examination of counter-petitions. Unfortunately, in the case of the latter, no suitable tests can be devised nor remedies fashioned.

3. Whereas petitions can be drafted and submitted without either the union or employer knowing who has signed, this is not so in the case of a counter-petition. Moreover, although it was not so in the case before us, counter-petitions can be drafted and signed concurrent with the signing of membership cards.

4. As has been pointed out, the legislation does not provide for counter-petitions. Rather they are a creature, or perhaps extension, of the certification process and have been given legitimacy by the Board.

5. Whatever gave rise to the Board practice of viewing counter-petitions in years past, I believe it is a practice which should be reviewed. The more mature reflection which is now possible in the light of empirical evidence and our knowledge of contemporary society should, I feel, lead us to conclude that counter-petitions have no place in the process and should be given no weight.