[1982] OLRB Rep. July 1098

0334-82-R Robert Watson, Applicant, v. United Electrical. Radio & Machine Workers of America (UE), Respondent, v. Westinghouse Canada Inc., Intervener, v. Group of Employees, Objectors.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and Stewart Cooke.

APPEARANCES: Michael G. Horan and Robert Watson for the applicant; V. B]arnason, George Stevens and Earl Holmes for the respondent; Paul S. Jarvis, Gary Sparks and Ron Dolinki for the intervener; no one for the objectors.

DECISION OF THE BOARD; July 30, 1982

1. This is an application for a declaration terminating bargaining rights, pursuant to the provisions of section 57 of the Labour Relations Act. That section provides:

2. ……

(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defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,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)6) 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.

2. The applicant, Robert Watson, has been employed as a machinist for slightly less than two years in the new Perth plant which is the subject of this application. His activities in opposition to the respondent trade union began well before the present application. The respondent was certified for this plant in February of 1981, and Mr. Watson actively opposed the application for certification and appeared at the hearing.

3. Following certification, the respondent was successful in negotiating a one-year collective agreement with the intervener employer. But that apparently did not snuff out the efforts of Mr. Watson to secure the expulsion of the respondent as bargaining agent. Mr. Watson continued during the term of the agreement to distribute leaflets against the respondent, and to arrange meetings of employees to discuss a possible decertification. The respondent, for its part, was well aware of the activities of Mr. Watson, and apparently made him a frequent subject of attack in its own propaganda material. It appears, in fact, that the employees themselves were being split into two identifiable camps, well before the circulation of the instant petitions, as there is a suggestion from the evidence that Mr. Watson and his supporters generally steered away from those employees known to support the union.

4. When the time came to apply for decertification, Mr. Watson had his wife type up a document which read:

THE ONTARIO LABOUR RELATIONS BOARD

AND

UNITED ELECTRICAL, RADIO, AND MACHINE

WORKERS OF AMERICA (UE)

AND

WESTINGHOUSE CANADA INC.

I, _____EMPLOYEE OF WESTINGHOUSE CANADA INC., AT THEIR PERTH PLANT, WISH TO GO ON RECORD AND ADVISE THE ONTARIO LABOUR RELATIONS BOARD OF MY OPPOSITION TO THE UNITED ELECTRICAL, RADIO, AND MACHINE WORKERS OF AMERICA (UE), TO ACT ON MY BEHALF AS MY BARGAINING AGENT IN DEALING WITH WESTINGHOUSE CANADA INC.

DATED AT ____ ,This DAY OF 19_____

_____________________ NAME:_______________

WITNESS ADDRESS:________________

and had large numbers of copies made for circulation. Mr. Watson himself played a very small part in the circulation of these documents, which took place roughly over the course of the first week in March. The bulk of the distribution was handled by other employees who had attended Mr. Watson's meetings, and circulation generally took place amongst friends or co­workers at a particular work-station. A number of the documents were signed in employees' cars or at home, and the remainder at employees' work-stations in the plant. Of the latter group, about half were signed during work-time, and the other half during breaks. With respect to those signed during work-time, the evidence of the employees involved was that they took care to ensure that no supervisor was present while they were engaged in this brief activity. The evidence further indicated that none of the 17 employee witnesses ever discussed the signing of these documents with any member of management, and that on any occasions when an employee did raise the subject of the union with his or her supervisor, the supervisor stated that that was not something that the company could get involved in. There was no evidence whatever before the Board to contradict these assertions by the petitioner-witnesses. Each petitioner was in fact cross-examined at length on his/ her true motivation for attempting to get rid of the respondent trade union, and such cross-examination revealed no more than a belief that the employees could do as well without a union, or a desire that the union's support be tested by way of a representation vote.

5. When Mr. Watson felt that he had obtained a sufficient number of signed petition forms, he began to seek legal assistance in the filing of the application itself. Mr. Watson had been represented by a Perth solicitor on the certification application, and had done some research on his own since that time. From discussions with a friend he came up with the name of a Toronto lawyer he knew to have acted against trade unions, but that lawyer advised him that he acted only for employers. The lawyer then referred Mr. Watson to his present solicitor. Mr. Watson testified that he recently inherited some money, and felt confident of his ability to pay his solicitor's account. The other employees testified that they had discussed the matter to some degree amongst themselves, and fully expected to contribute at a later time toward the expenses incurred by Mr. Watson. Mr. Watson also chartered a bus to take employees to Ottawa for the initial day of hearing of this application, and the witnesses had the same understanding with respect to payment for this bus when the bill is received.

6. There were approximately 55 employees in the bargaining unit at the date of the application. The petition-documents filed represent more than 45% of the employees in the bargaining unit at the time the application was filed. The petitions clearly state that the declarants no longer wish to be represented by the trade union, so that if the Board finds them to be "voluntary", the applicant will have satisfied the statutory pre-condition entitling him to a representation vote.

7. In this regard, the applicant argues that the "standard" of voluntariness is less in a termination application than in a certification application. While the applicant correctly points to previous Board cases as recognizing a distinction between the two situations, the distinction is a practical one, and it is simply inaccurate to say that the Board applies a different "standard" to each. The sole issue in any petition case, be it on certification or termination, is: Is the Board satisfied that the petition is voluntary? There is no other way of describing the question before the Board, or the "standard" that must be met. The difference between the certification and termination situations is that the Board, from a practical standpoint, is not faced with a bemusing "sudden change of heart" in termination applications, but rather can look to the experience which employees have had in being represented by a bargaining agent, together with any other intervening events, including the passage of time, to satisfy itself that the "change" in direction is not employer-motivated. As the Board put it in Ontario Hospital Association, (Blue Cross)[1980] OLRB Rep. Dec. 1759:

8. The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented in N. J. Spivak Limited, [1977] OLRB Rep. July 462:

9. In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49, a section designed to give vent to employee desires, requires the passage of at least one year from the date of the union s certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certification of the same union, and having regard to the purpose of section 49, the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 of the Act.

See also Northern Telecom Canada Limited, [1979] OLRB Rep. April 330.

8. Here the main factor upon which the respondent relies in challenging the voluntary nature of the petitions is the employees' awareness that this employer was found guilty of having moved its Hamilton operation to Perth for the purpose of ridding itself of the respondent. See, Westinghouse Canada Inc., [1980] OLRB Rep April 577. The respondent argues that from this employees would know that their present efforts were consistent with those of the employer earlier, and indeed a number of the petitioners who testified agreed that that was a reasonable conclusion to draw. The witnesses denied, however, that this was a motivating factor in their own decision to bring this application. The evidence upon which the respondent relies to contradict this assertion is scant indeed.

9. The respondent relies, first of all, on the manner in which the employer altered its normal communications with employees following the initial Westinghouse decision, by instructing its supervisors not to discuss the question of "Union" with any employees. The employer thereby, the respondent argues, attached a stigma to the whole subject matter, rather than having its supervisors simply tell the employees to do what they wanted. The respondent argues, at the same time, that in spite of the employer's instructions, there were examples of supervisor comment, and that these comments influenced employees to bring the present application. The respondent points to the admissions of petitioners Vera Fanning and Hazel Ronson in support of this submission. But Hazel Ronson indicated that the "Union" discussion she had with a previous Unit Manager took place some year-and-a-half ago, and the thrust of that discussion was not explored. Vera Fanning admitted discussing the Union with her brother-in-law, who is a Unit Manager. Her brother-in-law expressed opposition to the Union. But that discussion took place prior to the Union even being certified, and also prior to the time her brother-in-law became a Unit Manager. Ms. Fanning also admitted that "the Union" had been discussed amongst her car-pool, of which Unit Manager Jim Parker is a member, but added that Mr. Parker indicated that he, as a supervisor, wasn't affected, and expressed no opinion. The Board does not find these incidents to establish a sufficient link with management to "taint" the petitions. Nor does the Board accept the respondent's broader argument that the employer, by being "too clean", improperly influenced its employees on the question of Union representation. The supervisors' apparent demurrer on the basis that the company cannot get involved is entirely in line with the employer posture which this and other Labour Boards have consistently encouraged.

10. Mr. Bjarnason, for the respondent, goes on however to question the meaning of the word "voluntary" itself, in the context of section 57, and to ask, for example, whether a citizen who obeys the law of the land out of fear of punishment can truly be said to be acting "voluntarily". He points to the "Management Rights" clause of the collective agreement and the notice of layoff delivered to a large number of employees just prior to the petition being circulated as a reminder to employees who it is that promulgates the "law" of the work-place. Can the Board really find, he asks, in the particular circumstances of this case, that employees were capable of acting "voluntarily" when they penned their name to the petitions seeking disaffiliation with the respondent trade union?

11. In dealing with employee petitions, the Board has long ago articulated the kind of standard which the concept of voluntariness requires to be met. The Board's earliest cases are cited at length, for example, in Sack and Levinson, Ontario Labour Relations Board Practice, Toronto: Butterworths, 1973. For purposes of brevity, the effect of those cases is summarized, at page 108 of the text, as follows:

The Board has discounted petitions where the employer, his agents or supervisors have actively assisted in the origination or circulation of the petition or have interrogated, threatened or made promises to employees or have given benefits to them. The Board has also rejected petitions where the employer has given tacit approval to the petitioners or turned a blind eye to their activity by allowing them to hold meetings or to circulate the petition on company premises during working hours (some­times in the very presence of supervisors) or to leave work without loss of pay to consult a lawyer or deliver the petition to the Board.

The Board recognizes that employers generally are not in favour of having to bargain with their employees through a trade union, and has recognized that employees tend to be aware of that general premises as well. See, e.g. Dylex Limited, [1977] OLRB Rep June 357, at page 367; Playtex Limited, [1972] OLRB Rep. Dec. 1027. The Board has always attempted to be realistic in this regard, while at the same time being cautious to "protect the fundamental rights of employees to make their own choice, as distinct from the choice of their employer, on the matter of selecting or rejecting a bargaining agent" ( Peel Block Co. Ltd., 63 CLLC 9116,227, and compare also Pigott Motors Ltd., 63 CLLC 91 16,264). As the Board noted in Cooper­Weeks Limited, [1967] OLRB Rep. Aug. 455, at paragraph 5:

It may be that, at the time they affixed their signatures to the petition, the employees were aware of, and took into account, the apparent fact of their employer's dislike for the officials of the respondent trade union. It does not follow from this, however, that the petition itself might not constitute a voluntary expression of the employee's wishes.

And further, as the Board concluded in Fuller's Restaurant, [1980] OLRB Rep. Sept. 1289, at paragraph 18:

... 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. . . the Board would be hard pressed to find that it had not been satisfied as to the voluntariness of the statement.

12. The fact of the layoff would not, in the Board's view, be something which would destroy the capacity for free expression on the part of employees, at least in the absence of additional evidence to demonstrate a reasonable connection between that and a message to get rid of the trade union. On the contrary, such a step on the part of the employer, as the "open season" for termination approaches, appears unlikely to generate either additional confidence or loyalty towards the employer at a time when employees are assessing their need for a trade union. Similarly, the maintenance at her Hamilton rate of an employee transferred from the UE plant in Hamilton (both of which the company was obliged by the Board's order in File No. 0945-79-U to do) seems hardly calculated to minimize the disparity in pay which exists between employees at that plant and the newer one opened in Perth. Nor, in view of that employee's limited role in assisting Mr. Watson in the solicitation of signatures (one other signature collected and some leaflets distributed), does the Board infer any "deal", as the respondent argues, for the company to transfer the employee from Hamilton with her Hamilton rate in return for promotion of the petition.

13. What the respondent's case really comes down to is the prior decision of the Board, in which the employer Westinghouse was found guilty of taking illegal steps to rid itself of the union. The respondent points to the fact that the company "policy" recited in the decision came not from the mouth of any first-line supervisor, but from the President of the Division himself. The respondent argues that the precedent-setting remedies which the Board ordered earlier were fine as far as they went, but that the employer must not be permitted to accomplish indirectly now what the Board sought previously to prevent it from doing directly.

14. But the employees are entitled, expressly by statute, to a say in the matter as well. The Board does not accept the respondent's submission that the Board's prior decision continues to have an "all-pervasive influence" which would remove the employees' capacity to form an independent opinion on the question of Union representation. Roughly two years had passed between the date of the Board's first decision and this application, and during that interval, significantly, the respondent was successful in obtaining sufficient membership cards to be certified without a vote by this Board, and in negotiating a first agreement for these employees. It may be that the three-year agreement which the respondent unsuccessfully sought would have enabled it to better consolidate its position; nonetheless, given the intervening events which have taken place, and the powerful array of remedies ordered in the original decision itself to counteract the effects of the unfair labour practice, the Board is of the view that sufficient time had elapsed to neutralize any negative influence from the earlier decision. For purposes of the respondent's argument, it might be noted in passing that the respondent itself chose to highlight the Board's decision in its propaganda material to employees, and that material in fact was the source of knowledge of the decision for many of the petitioners who testified before the Board. It may be, as well, that the continuing broadsides of Mr. Watson played a role in the respondent's difficulties in consolidating its support. But the Board would be hard-pressed to say that Mr. Watson did not possess the right to continue to express his views about the Union, so long as his activities were not carried out in such a way as to cause other employees to associate them with the hand of management. The process became a political one, and one in which the respondent, it would appear from the limited evidence before us, was actively engaging. In the absence of even the slightest trace of employer misconduct subsequent to the Board's prior decision, or interference in any way in the issue of union representation which was being openly contested within this plant, the Board finds no basis on which to conclude that employees who have signified opposition to the union in this case were acting out of fear of employer reprisal.

15. The Board must conclude, therefore, on the basis of all of the evidence before it, and even taking into account the particular history of this case, that the applicant has filed voluntary significations in writing within the requirements of section 57 of the Act, and is entitled to the representation vote which that section makes available.

16. The Board accordingly directs that a representation vote be taken amongst the employees in the bargaining unit, which is described as:

All employees in the Municipality of Perth, Ontario save and except Unit Managers, persons above the rank of Unit Manager, Office, Sales and Engineering Staff, and students employed during the school vacation period, clerical staff and persons regularly employed for not more than 24 hours per week.

All employees in the bargaining unit as of the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

17. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Westinghouse Canada Inc.

18. The matter is referred to the Registrar.