[1982] OLRB Rep. May 797
2135-79-R Labourers' International Union of North America, Local 183, Applicant, v. F. W. Woolworth Co. Limited, Respondent, V. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: B. Fishbein and T. Spada for the applicant; R. A. Werry for the respondent; Tyrone V. Smith and Clement Young for the objectors.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER F. W. MURRAY; May 13, 1982
This is the continuation of an application for certification.
The history of this application is unusual in terms of its length, and should be recited briefly. The application was filed on February 15, 1980. Timely statements in opposition were also received prior to the terminal date set by the Board. At the hearing of the application an issue arose as to whether the applicant was entitled to apply for certification for a bargaining unit consisting solely of the employees at the respondent's Humberline warehouse. After lengthy examinations by a Labour Relations Officer, the Board by decision dated June 29, 1981, decided that it was. Even on that basis, however, there were challenges to the respondent's list, the applicant taking the position that the Head Receiver, Randy Defino, the Head Shipper, Earl LeBlanc, the Assistant Head Shipper, Earl Anderson, and the lead employee in the Customer Service Department, Tyrone Smith, exercised managerial functions within the meaning of section l(3)(b) of the Labour Relations Act, or alternatively, did not share a community of interest with the other warehousing staff in the bargaining unit. After further examinations by a Labour Relations Officer, the Board by decision dated January 26, 1982, rejected both submissions of the applicant with respect to all four individuals, essentially finding that Messrs. Defino, LeBlanc and Smith were no more than "lead hands" and properly included with the bargaining unit.
There were filed in this matter timely statements in opposition to the application. The statements in opposition indicated that the employees who signed them no longer wished to be represented by the applicant trade union. If the signatures on the petition were found by the Board to be voluntary, the applicant would have unequivocal evidence of employee wishes with respect 10 less than fifty-five per cent of the bargaining unit. In such circumstances, the Board would normally exercise its discretion to seek the confirmatory evidence of a representation vote. The Board accordingly scheduled a further hearing to inquire into the voluntariness of the signatures on the petitions.
The petitions were filed with the Board by Mr. Tyrone Smith, the individual whom the Board in its previous decision has found to be a "lead hand" in the Customer Service Department of the respondent's warehouse. Mr. Smith has worked at the respondent's warehouse for a number of years. At the time of the application for certification, he testified, he was approached by a fellow employee and asked if he wanted to sign up for the union. Mr. Smith considered the matter overnight and then indicated to the employee that he was not in favour of joining. While Mr. Smith's memory was somewhat hazy over precise dates, one gathers from a fair reading of his evidence that over the course of the next few days he learned from general discussions that there were other employees in the warehouse similarly opposed to union representation, and Mr. Smith decided at that point that he ought to circulate a petition against the union which all those desirous of signing could sign. Asked why he opted against the union, Mr. Smith testified that he was a family man, and that he had friends who had been in companies with union representation, and ended up losing their homes and being out of a job for months (presumably a reference to strikes). He added that he was satisfied with his own salary at Woolco, and felt that job security depended more upon the merits of the particular individual, than it did upon whether the company was union or non-union. He stated that he learned from the Board's green sheet that was posted what it was that employees had to do if they were opposed to the application and testified that he took the matter into his own hands because "somebody has to take the lead". He said that he phoned the Labour Board to obtain more information, and that a man he spoke to, whom he could not identify, explained to him in a lengthy conversation what he could and could not do.
MI. Smith testified that he wrote a petition up on his own, and proceeded to circulate it amongst the employees in the warehouse during lunch and coffee breaks, in the employees' lunchroom. He testified that his supervisors also use the lunchroom for their lunch, but that he could not recall any supervisor ever being present when he was circulating the petition, lie testified that the man from the Labour Board had told him that management was not to be involved, and that he therefore was cautious not to exhibit the petition when anyone from management was present. He testified further that it was "fair knowledge" that other employees actually approached him to sign it. Whenever an employee signed the petition, Mr. Smith had another employee sign as a witness. He indicated that he did this because he was told by the man from the Labour Board that the signatures all had to be witnessed. When Mr. Smith had gathered all the signatures, he took the petition to the Post Office, after work, and sent it to the Board by registered mail. He also submitted a second petition, with the signature of one employee on it, to the Board, but as the parties were advised, this petition was not material (in terms of an overlap) to the Board's inquiry. He subsequently retained the services of a lawyer though the Law Society Referral Service, the number for which he says he obtained from the telephone book. Counsel was present with Mr. Smith on previous days of hearing, but not on the day on which the Board's inquiry into the petition was conducted. Mr. Smith testified in cross-examination that he had not yet paid the solicitor for her services, because he had been intending up until a week previous to have her represent him on this inquiry as well. He testified that he decided not to engage her services for the final hearing because he felt that he had learned enough by that time to represent himself. He testified that he had made no arrangements with the company to cover the payment of his solicitor's fee, and that he had already collected money from other employees in the bargaining unit directed toward that purpose.
Mr. Smith was asked in cross-examination if any of his signatures were collected on the shift, and he indicated that none of the employees who signed worked the second shift. He was then asked, whether or not the employees were permanently assigned to the second shift, if it was possible that some were in fact working overtime in the warehouse during the evening hours, and signed the petition during the evening hours, and signed the petition during the evening break. Mr. Smith then conceded that that was possible. He was asked whether he was certain that no one from management was in the lunchroom at any of the times that employees were signing the petition, in particular on an evening shift. Mr. Smith repeated his earlier testimony that he made it a practice not to exhibit the petition when management was around. He said that he could not recall ever showing the petition to Mike Pearson, his supervisor, and that he did not think that was possible, because Mr. Pearson is a member of management, and the Labour Board had warned him about that.
This line of questioning was directed at the only evidence which the applicant called to contradict Mr. Smith. Kurt Mackenzie, a warehouseman in the respondent's shipping area, testified that he "thought" Mike Pearson, a supervisor, had been eating his lunch at one of the other tables in the lunchroom one evening when Mr. Smith was circulating his petition amongst the members of the night crew assembled there. Questioned further, Mr. Mackenzie stated that he was "pretty sure" that Mr. Pearson had been there, because he seemed to recollect that the whole crew was in there. He thought he remembered the incident on that particular night because it was unusual for Mr. Pearson to be the supervisor on the night shift. Mr. Pearson is the Material Handling Supervisor, and appears to be the immediate supervisor of the employees in the warehouse when he is on shift. He testified that he did not notice Mr. Smith circulating a petition at any time that he himself was present, and that he in fact was filling in as the night-shift supervisor for the entire month of February. Putting Mr. Mackenzie's evidence at its highest, the Board on balance concludes that even if Mr. Pearson did happen to be eating his lunch in the lunchroom on one occasion when Mr. Smith was circulating the petition amongst other employees, his involvement, based on the obliqueness of Mr. MacKenzie's own recollection, was not such as to cause a reasonable employee apprehension about managerial complicity, bearing in mind that the employees were on lunch-hour at the time.
The applicant's primary ground of attack on the petition is the fact that Mr. Smith himself, the petition's main proponent, is a "lead hand" in the warehouse, whom the Board in its earlier decision found in certain respects did "stand apart" from other employees in the unit. The applicant argues that the Board cases establish that that alone is sufficient. The cases relied upon, however, fall short of establishing an approach that is that clear-cut.
The Board cases have made it clear that in dealing with the voluntariness of a petition, it is unnecessary to find that a challenged individual in fact exercises "managerial functions", within the meaning of section 1(3)(b) of the Act. Rather, it is sufficient if the person is perceived by employees as possessing sufficient authority to affect their employment status. A person who is not "managerial" has a prima facie right to participate on either side of an organizing campaign, and whether his involvement in a petition against the union will be sufficient to impair the voluntariness of a petition depends on the extent of the authority perceived, together with the surrounding circumstances. The Board has reviewed the cases relied upon by the applicant. In I.M. Pastushak, [1980] OLRB Rep. July 979, the crew leader was the only supervisor in the field for the respondent's survey crew, and made regular reports on the crew's performance to head office. The evidence also establishes that, prior to the other employee in the crew signing the crew leader's petition, the crew leader indicated to the employee that he had already told the boss that he would be taking up a petition against the union. In Quality Circuits, [1979] OLRB Rep. Aug. 794, there were no persons in the position of actual foreman in the respondent's organization, so that the lead hands were the respondent's only floor supervision and reported directly to the plant manager. In Trent Electric, [1976] OLRB Rep. April 163, the petitioners had distributed ballots in envelopes for employees to mark anonymously, and one batch of envelopes was given to a lead hand to distribute. The petitioner testified that he received the envelopes back from the lead hand later in the day, and deposited them in the sealed ballot box. The petitioner did not realize the necessity of having the lead hand present to testify as well, and the Board commented adversely with respect to his absence. The Board noted the particular concern that arises when the individual who is missing stands in the position of a group leader or lead hand; the Board also made it clear that the absence of direct evidence of where and how any of the employees were approached and asked to mark their ballots was fatal to the probative value of those ballots. In Dad's Cookies, [1976] OLRB Rep. Sept. 545, the so-called lead hands were in fact more commonly referred to as "foreladies", and the evidence made it clear that they exercised substantial and significant authority on a daily basis over the employees on the floor. In Leamington Vegetable Growers, [1974] OLRB Rep. June 402, the leader in question admitted to being regarded as a "boss", and there was in that case the additional problem of open and unfettered circulation of the petition during working hours which contributed to the impression of tacit managerial involvement. This latter point was also the main stumbling block in a recent unreported decision of the Board in Strano Foods Limited, Board File No. 2806-80-R, released September 30, 1981. In General Crane, [1974] OLRB Rep. Oct. 662, the lead hands again were perceived as "bosses", who had effectively recommended both promotions and pay increases, and who were couched with the authority to reprimand other employees. There was in that case as well the taint of a prior petition in which members of management had been actively and improperly involved. In Great Atlantic & Pacific Tea Company, [1969] OLRB Rep. Nov. 947, the lead hand was in fact at the time the "acting" department manager and in his own testimony described himself as being "in charge" during that period the case which comes closest to assisting the applicant is that of Becker Milk, [1966] OLRB Rep. Apr. 37, in that the regular "supervisory" functions of the individuals in question most closely approximated those performed by the lead hands in the present case. There, however, the Board found that these same individuals in effect took over the job functions of the plant manager on the latter's days off, and had in fact had occasion to seriously affect the employment status of an employee in the past.
In the present case the Board, in its earlier decision on the issue of managerial status, had this to say about the three "lead hands" in the respondent's warehouse:
For the purposes of the applicant's challenge, the four persons in dispute can be dealt with as a group. It is clear that all four of these individuals spend the bulk of their time performing physical work side by side with, and of the same nature as, the other warehouse staff in the unit. Messrs. Defino, LeBlanc and Anderson report to Mr. Pearson, the Assistant Warehouse Manager, and Mr. Smith reports to Mr. Dougherty, the Traffic Co-ordinator. These two individuals in turn report to the Warehouse Manager, Mr. Reid. Mr. Defino and Mr. Anderson, at least, are paid at a premium rate above the other warehousemen, and all four have access to a red Woolco blazer which they wear from time to time. Mr. Defino and Mr. LeBlanc have a desk in the small shipping office located in the warehouse, and Mr. Smith has a desk located elsewhere in the warehouse. It is clear that in meeting with members of management to receive the overall work assignments, in distributing those assignments amongst the members of the crew, and in checking to some degree the work being performed, these individuals carry out the normal function of a "group leader", or a "lead hand". In the absence of the persons to whom they normally report, their responsibilities of course increase marginally. They have in their possession keys that others do not have, and they are normally the individuals in the bargaining unit to have contact with company customers. To the extent that overall records are made and verified in each department, these individuals appear to be mainly the ones who do it. They do not, however, appear to become involved in reporting disciplinary incidents to any significant degree more than other members of the bargaining unit, and their overall impact on the working lives of their fellow warehousemen appears minimal. As the Board observed in the case of Rehau Plastiks of Canada Ltd., [1979] OLRB Rep. Sept. 910, in considering the "lead hands" before it:
There is no evidence of the lead hands having authority for such matters as setting work schedules, deciding if overtime is to be worked, montitoring absences of employees, discipline, complaints resolution, hiring or firing. Nor is there any evidence that they influence these matters by means of effective recommendation.
In the present case, while the individuals in question do stand apart, as noted above, from the other members of the bargaining unit, they appear to perform the classic functions of a "group leader", and the red jacket, if it reflects anything other than customer contact, appears to reflect no more than this. Each case must be judged objectively on its own facts: Corporation of Thunder Bay, [1981] OLRB Rep. Jan. 6. On the evidence, the present individuals fall well short of meeting even the "effective recommendation" test enunciated in Inglis Ltd., [1976] OLRB Rep. June 270, and the Board finds no basis for excluding them under section l(3)(b) of the Act.
It should be noted that not all of the lead hands performed all of the functions referred to by the Board in the paragraphs above. This was particularly true of Mr. Smith, who had only one, and at times two other employees working in the Customer Service Department with him, and generally had less contact with management. The Board lumped all of the various duties performed by the lead hands together, to expedite its decision and also to put the applicant's case at its best. The Board has no reason to depart from this approach in assessing the issue of voluntariness of the petition, since a scanning of the petition reveals that there were others amongst the individuals in dispute who signed at various points in the petition. The Board has frequently expressed its concern over the voluntariness of the signature of any employee signing a petition after a person perceived by him to be a "boss", or capable of affecting his employment status. But while the evidence from the Examiner's report left no doubt as to who would be perceived by employees as the group leaders or lead hands in the warehouse, the evidence fell hr short of establishing even peripheral management functions of the kind that would concern the Board. Indeed, after reviewing the report of the Examiner on the duties and responsibilities of the individuals the applicant had challenged, the Board surmised that the challenges arose more likely from the applicant's apprehension of the position in which it stood on the membership count, than from its own understanding of the criteria which the Board normally applies in these matters. In any event, the Board is of the view that Mr. Smith and the other lead hands in the warehouse possess minimal supervisory responsibilities only, and there is nothing in the evidence to suggest that they are perceived any differently by the employees. The Board cannot conclude, therefore, that the role played by Mr. Smith (or the other lead hands) in connection with the instant petition would prevent the Board from finding that the acts of other employees in signing were voluntary. While the involvement of an individual who stands apart form the rank-and-file must be considered with care, whether the Board ultimately concludes that the petition can be given no weight depends on all of the facts in each case compare Catfish Calhoun Inc., [1981] OLRB Rep. Nov. 1551). The Board declines to discount the petition in the present case merely on the ground of Mr. Smith's status.
Perhaps the strongest attack on the petition is the credibility of Mr. Smith as a witness. Needless to say, it is fundamental to a finding of voluntariness of a petition that the Board believe the petitioner himself. In the present case, it must be noted that the quality of Mr. Smith's evidence, both as a witness in the examinations conducted by the Labour Relations Officer, and in the petition hearing before the Board, was noticeably less than ideal. Mr. Smith's account of the petition did not, however, lack overall credibility, and he did make concessions at certain points which spoke in favour of his candour. The applicant is really asking the Board to look behind the evidence that it has before it to infer that management has somehow been involved. Considering Mr. Smith's testimony in context, and the lack of any other evidence before the Board which would cause it to have more than ordinary concern, the Board is not prepared to draw the necessary inferences. The Board finds insufficient grounds before it, therefore, to reject the statements in opposition to the application as involuntary.
There have been, since the time that this application began, charges against the respondent levied by the applicant and upon which the applicant was seeking to be certified without the taking of a representation vote, pursuant to the provisions of what is now section 8 of the Labour Relations Act. When the matter was taken over by this panel of the Board, the parties advised that they had agreed amongst themselves to have the Board determine the issue of the voluntariness of the petition, after which the applicant would review its position with respect to its section 8 charges, if necessary. The Board has dealt with the matter as agreed upon by the parties, and has now rendered its decision on the petition. The applicant must now consider whether it wishes to proceed with its charges and request under section 8 of the Act, or whether it wishes the matter to be dealt with immediately by way of a representation vote. If the applicant does wish to pursue the former course, the Board directs it to deliver to the Board written notice to that effect within 10 days of the date of this decision, and the Board will proceed through the Registrar to schedule continuing dates for hearing.
DECISION OF BOARD MEMBER B. L. ARMSTRONG;
I dissent.
I am not satisfied that the statement of desire circulated by Tyrone Smith represents the voluntary expression of the true wishes of the employees.
I do not believe that Mr. Smith was a credible witness and I further believe that he is perceived by the employees to be a member of the management team.
His lack of credibility as a witness draws from the following evidence. Mr. Smith testified that he wrote and circulated the petition on his own and was cautious not to exhibit it when management was present. However, he further testified that he could not recall whether he had shown it to Mike Pearson, the material handling supervisor. Kurt Mackenzie testified that Mr. Smith in fact collected signatures on the petition one evening in the presence of Mr. Pearson. The majority has noted the questionable nature of Mr. Smith's evidence both under examination by the Labour Relations Officer and before the Board.
In addition, I must record that Mr. Smith is distinguishable from the other employees in the bargaining unit in that he is a lead hand in Customer Service and could be perceived as a representative of management.
I would give no weight to the statement of desire. I would reject it on the ground that it was conceived and circulated by a representative of management. I base this decision on the lack of the credibility of Mr. Smith as a witness, and on the fact that he was someone who could be perceived by employees as being in a position in which he could make decisions affecting their employment.