Ontario Labour Relations Board
[1982] OLRB Rep. June 911
0142-82-R Neil Edward Whittaker, Applicant, v. International Brotherhood of Electrical Workers 804 and A. R. Milne Electric Ltd. Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members W. G. Donnelly and H. Simon.
APPEARANCES: N. E. Wittaker for the applicant; L. Banack and .J. Wilson for the respondent.
DECISION OF THE BOARD; June 30, 1982
- This is an application for termination of bargaining rights filed pursuant to section 57 of the Labour Relations Act. The relevant portions of that section are as follows:
57 (2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(3) 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)(j) that they no longer wish to be represented by the trade union, and, if no 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.
In the instant case, there is only one employee in the bargaining unit, and for this reason, the respondent union argues that no termination application can be brought. The union points out that on a certification application, the Act prevents the Board from determining an appropriate bargaining unit unless such unit consists of more than one employee; moreover, the term "bargaining unit" is defined in section 1(1)(b) to mean a "unit of employees (plural) appropriate for collective bargaining". The union argues, by analogy, that if two employees are required for a bargaining unit to be certified, bargaining rights cannot be extinguished unless there are at least two employees in the unit. The union also questions whether there is a bargaining unit at all in this case, when the definition of that term appears to require a collectivity.
We cannot accept these contentions. In the construction and related industries, the number of employees in a bargaining unit can fluctuate substantially, and from time to time, the bargaining unit may even be vacant. Indeed, section 121 of the Act contemplates that the parties can negotiate a collective agreement even if there are no employees in the bargaining unit at the time the agreement is entered into. It is inconsistent to assert as the union does that there is no "bargaining unit", while at the same time maintaining that it continues to represent the applicant employee; and, we would not lightly embrance an interpretation which could conceivable lock an employee, unwillingly, into a bargaining unit with no possibility of escape, even in the "open period" prescribed in section 57(2)(a). In our view, such submission is entirely inconsistent with the scheme and purpose of the Act. Section 57(2) provides that any of the employees in a bargaining unit may make a timely application to terminate bargaining rights, and we are satisfied that the applicant has properly done so here.
A more difficult question is whether the Board can be satisfied that the application is truly voluntary, for on the evidence, it is apparent that the applicant's employer has been involved with the application from its very inception. Mr. Wittaker testified that there were certain instances in which he was dissatisfied with the quality of representation which he was receiving from his union, and there is no reason to doubt his evidence in this regard. But insofar as the application for termination itself is concerned, the employer's involvement makes it particularly difficult for the Board to determine whether the application truly represents Mr. Whittaker's own choice, as distinct from the choice of his employer.
Mr. Whittaker testified that when he began to consider applying to the Board to terminate the union's bargaining rights, he went to talk the matter over with his employer. He told the Board that he would not have launched the application if his employer did not approve. Not surprisingly, his employer had no objections, and even assured Mr. Whittaker that if the union's bargaining rights were terminated, he (Whittaker) would still receive wages and benefits comparable to any union settlement. Neither Mr. Whittaker nor his employer were certain about how a termination application could be made, so his employer indicated that he would contact the firm's solicitors to take care of the matter. This he subsequently did. Those solicitors obtained and prepared the documentation initiating this application, together with a covering letter for Mr. Wittaker's signature. Once this material was prepared, Mr. Whittaker picked up the documents and signed them. But they were not mailed immediately. It took Mr. Whittaker a month to actually mail the material to the Board, for, he testified, he was having second thoughts about his course of action. However, his employer asked him 2 or 3 times whether the termination application had been filed, and he eventually did so.
The Board has always been sensitive to the particular vulnerability of employees arising from their dependent position in the employer-employee relationship. The employer has substantial control over his employees' livelihood, and this, in turn, gives him the ability to influence his employees, by rewarding or encouraging conduct of which he approves, and discouraging conduct of which he disapproves. In Pigott Motors (1961) Limited 62 CLLC ¶16, 264, the Board put the matter this way:
“There are certain facts of labour-management relations which this Board has as a result of its experience in such matters, been compelled to take cognizance. One of those facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer, and his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously vulnerable to influence, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason, and because the Board has discovered in a not inconsiderable number of cases, that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence in a form or a nature which will provide some reasonable assurance that a document such as a petition, signed by employees purporting to express opposition to the certification of a trade union truly and accurately reflects the voluntary wishes of the signatories.”
Of course, employer antipathy to trade union representation is neither unusual nor, in itself, illegal; but, given the power of the employer to influence the wishes of his subordinates, the Board must be especially scrupulous in its concern to protect the right of those subordinates to make their own choice, as distinct from that of their employer, in the matter of trade union representation - especially in a small bargaining unit where employee wishes (whether on the application itself or in a repesentation vote) will be clearly identified.
The Board has before it a cogently worded statement of desire in opposition to continued union representation; but in all the circumstances, the Board cannot be satisfied that it is a truly voluntary expression of the individual concerned. It is clear on the evidence that the employer has been involved with the application since its inception, provided the applicant with direct assistance in having it prepared, and was actively interested in its filing —even when the applicant himself was considering whether he would actually do so. This is not to imply that there was a pattern of conscious or deliberate impropriety on the employer's part. It is simply that on the evidence the Board cannot be satisfied on the balance of probabilities, as it must be, that the statement in opposition to the trade union is voluntary.
For the forgoing reasons, the application is dismissed. We do not wish to leave this matter without noting that there was some evidence that at some time in the past, when the employer's operation was larger, the applicant may have exercised certain functions which were arguably “managerial” within the meaning of section 1(3)(b) of the Act. He does not do so now, and has not for some time; but if that situation should change it may well be that pursuant to section 1(3)(b) he would not be considered an employee within the meaning of the Act.