Ontario Labour Relations Board
[1983] OLRB Rep. April 536
1577-82-R Marvin MacKay on behalf of a group of employees. Applicant, v. United Steelworkers of America, and its Local 13571, Respondent, Irwin Toy Limited, Intervener
BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. A. Ronson and C. A. Ballentine.
APPEARANCES: Howard Levitt, Marvin MacKay and Israel Palter for the applicant; James Hayes, Brain Herlich and Alex Muse lius for the respondent; A. D. G. Purdy for the intervener.
DECISION OF M. G. PICHER, VICE-CHAIRMAN AND BOARD MEMBER J. A. RONSON; April 6, 1983
This is an application for a declaration terminating bargaining rights under section 57 of the Labour Relations Act. The respondent union was certified as bargaining agent for the employees of the intervener at its plant in Etobicoke and following a difficult strike a first collective agreement was concluded. This application to terminate the bargaining rights comes at the first open period available under the Act, and is strenuously resisted by the respondent union.
Section 57 of the Act provides, in part:
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defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.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 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.
In the instant case the employee petition to terminate the union's bargaining rights was sponsored by Mr. Marvin MacKay. An employee of some 27 years, Mr. MacKay opposed the union at the time of its certification. He did not support the strike and made no secret of the fact, even after the settlement, that he did not wish to be represented by the union. He and a few other employees of like mind contacted the Board approximately a year ago to inquire by what means the union's bargaining rights could be terminated. They then received copies of the layman's Guide to the Ontario Labour Relations Act and a copy of the Act from the Board.
Following the advice in the guide, as the open period approached Mr. MacKay called the lawyer referral service of the Law Society of Upper Canada and by that means was eventually referred to counsel who represented him in these proceedings. His counsel instructed him on how to proceed, and according to his testimony, specifically told him not to have any contact with management with respect to his efforts to terminate the union's bargaining rights.
With the advice of counsel Mr. MacKay himself drafted and hand printed the preamble to his petition which reads:
I, the undersigned, member of the bargaining unit of the United Steelworkers of America Local #13571 at Irwin Toy (165 North Queen) no longer wish to be represented by that Local union. As such I hereby request the Ontario Labour Relations Board to terminate the bargaining rights of the United Steelworkers of America Local #13571 at Irwin Toy 165 North Queen St.
On the morning of November 11, 1982, at 6:00 a.m. Mr. MacKay stationed himself on the sidewalk adjacent to the main entrance to the plant known as the Freightliner Driveway. With the petition on a clipboard he solicited the signatures of employees coming on shift until approximately 7:55 a.m. at which time he went to work himself, as scheduled. In that period he obtained twenty signatures, in addition to his own.
Mr. MacKay next found himself approached at work by several employees during the morning. He did not feel that he could sign any of them on company premises, and so instructed some to meet him at the coffee truck at 11:30 a.m. and others to meet him at the gate at noon. At 11:30 a.m. he met four people at the coffee truck in the plant parking lot near some shipping doors. The employees then accompanied Mr. MacKay to the gate where he obtained their signatures on the sidewalk outside the plant. He returned to the plant and punched out again at 12 noon, returning to the sidewalk outside the gate until 12:30 p.m. In that period he obtained a further seven signatures. These latter signatures, like the four obtained at 11:30, were on a second page of the petition. That concluded his efforts for that day, with a total of thirty-two signatures on his petition.
On December 1, 1982 Mr. MacKay printed a supplementary petition with the preamble:
We the undersigned employees of Irwin Toy Limited at 165 North Queen would like to add our names to previous petition dated November 18, 1982 calling for end to bargaining rights of United Steelworkers of America.
He testified that the second document was prepared because a few additional employees told him they wished to sign, and because two employees whose signatures were obtained on November 11th had apparently signed documents of revocation favouring the union and advised him that they wanted to reaffirm their support for his petition. The four signatures in the supplementary petition were obtained on December 1, 1982 in the cafeteria at the back of the plant between 11:30 a.m. and noon.
The petition collected on November 11, 1982 was delivered by Mr. MacKay to his lawyer at 2:00 p.m. on November 12, 1982. His counsel then forwarded it to the Board. The second, which was signed on the morning of the terminal date, was taken to the Board for Mr. MacKay by Margaret Mayhew, a secretary at the plant, during her lunch hour on December 1, 1982.
Counsel for the union submits that the petition should be rejected on a number of grounds. Initially he submitted that it should be disregarded because of the preamble. The document refers to the United Steelworkers of America, Local #13571 as the union whose bargaining rights are being terminated. In fact the bargaining rights are held by the parent United Steelworkers of America, the body which was certified by the Board and which executed the collective agreement. The affairs of the bargaining unit are, however, administered by Local #13571 of the union. Local #13571 gives notice to the employees of meetings, in its own name. It conducts meetings and has held itself out as bargaining with the company on behalf of the employees. A notice to employees filed as an exhibit, relating to a meeting on November 30, 1982 is headed "Local 13571 at Irwin Toys, North Queen, Membership Meeting". There is no possibility of confusion in that no other bargaining rights are held in the plant by any other union. As the Board has noted in a similar circumstance in the past, when there is no doubt about the intention of the document, substance should prevail over form, particularly when the document in question was drafted by a layman. (Gen wood Industries Ltd., [19761 OLRB Rep. Aug. 417; Armbro Materials & Construction Ltd., [1976] OLRB Rep. Nov. 743.) As the Board noted in Armbro (at p. 748):
The minimal test ... is for the Board to ask itself whether the wording and form of the document at the time the employees signed it were such as to make the intention and purpose of the document clear and unequivocal in the minds of the persons signing.
When that test is applied in the instant case we have no doubt that the employees knew that the document filed was clearly and solely intended to terminate the bargaining rights of the Steelworkers in the plant. Local 13571 is an agent of the parent union. Its extended involvement with the employees has been such as to blur any practical distinction between the parent and the local in the minds of employees. There is no doubt, however, that the employees know that Steelworkers, acting through the local was their bargaining agent and could reasonably conclude that the petition was aimed at terminating its bargaining rights. On that basis at the hearing we ruled against the preliminary motion of counsel for the union to dismiss the application on the basis of a technical defect in the preamble. We might now add that we do not see anything in the wording of the preamble that would materially affect the voluntariness of the petition document.
- The Board's task in an application under this section was recently reviewed in the decision of Third Dimension Mfg. Ltd., [1982] OLRB Rep. Dec. 1942. In that case the Board commented, at p. 1946-47:
The use of the word "voluntarily" in the section makes it necessary for the Board in every case to satisfy itself that the petition or statement filed in support of the application represents a reliable expression of employee wishes, reasonably free from a concern that their expression one way or the other will come to the knowledge of their employer. On the other hand, employer knowledge that a petition is being taken up against the union, or the recognition by employees that an employer would prefer to be without a union, are not in themselves matters which disturb the Board. See Parkers Dye Works and Cleaners Limited, [1974] OLRB Rep. Dec. 859, at paragraph 37; Cooper Weeks Limited, [1967] OLRB Rep. Aug. 455.
In addition, the Board has noted the practical distinction which time and other intervening factors may create in assessing a petition which accompanies a termination application, as opposed to one which arises at the time of initial certification. In Northern Telecom Canada Limited, [19791 OLRB Rep. Apr. 330, for example, the Board cited an earlier comment in N. J. Spivak Limited, [1977] OLRB Rep. July 462, as follows at paragraph 10:
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, [now 57], the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application filed under section 49 of the Act.
The Board has noted in a number of cases that where there were grounds for a reasonable perception on the part of employees that management is aware of the petition and may become informed of who does and does not support it the document may not be accepted as freely signed by the employees. In every case, however, the Board must carefully weigh the evidence to determine the conclusion to be drawn in the particular circumstances.
For example, in Northern Telecom Canada Ltd., [1979] OLRB Rep. Apr. 330 three employees sought to terminate the bargaining rights of a union and proceeded in a way not dissimilar to the circumstances of this case. They contacted the Board to seek advice on how to proceed and obtained the names of three lawyers. They retained counsel and took his advice on how to proceed. The signatures of employees were initially solicited at three entrances to the plant beginning at 6:15 a.m. on a Monday morning, as the day shift came to work. The evidence established that at least one supervisor was in the vicinity and inquired as to what was being signed. In the circumstances of that case, however, the Board was satisfied that employees would not have been apprehensive and could freely choose to sign according to their own wishes. The Board concluded (at p. 333-34):
In this case the circulation of the statement inside the plant gate on February 19th must be viewed in light of the fact that union literature was frequently disseminated on company premises (albeit outside the plant doors on most occasions). The employees of this company frequently received union literature on company premises. Although the persons who handed out the literature on behalf of the union were on company premises with the permission of the company there is no suggestion that the employees ever viewed the leaflets or other literature as company inspired or vetted. The petitioners in this case positioned themselves inside the gate for a single 45 minutes period.
While the employees entering the plant on February 19th may have assumed that the circulators had obtained permission from management to be inside the gate, which they had not, we are not prepared to conclude that these employees would also have assumed in this case that management was involved in and supported the circulation of the statements and would likely become aware of the names of those who signed and those who did not. In the absence of any sudden change of heart the Board is not prepared to conclude in these circumstances that employee freedom of choice in this matter was impaired by virtue of the statements being circulated on company premises and, on the morning of February 19th, at a time when the night supervisor was in the vicinity.
The foregoing cases should not be taken for the proposition that management awareness of a petition or the employee's perception of it is an irrelevant fact. It clearly is relevant. They do represent instances however, where the Board has acknowledged that in an application for termination the mere possibility of employer knowledge or a slight indication of it will not, ipso facto, destroy a petition, and that the Board must consider all the facts in giving weight to that factor.
Counsel for the union urged the Board to find that the petition could not be voluntary in the circumstances of this case. In this regard he relied on the position in the plant occupied by Mr. MacKay and employee perception of his proximity to management, as well as on the position and involvement of Ms. Mayhew. He further submits that the public gathering of signatures for the petition at the plant gate, in an open space visible from management offices approximately 100 yards away, would deprive employees of the ability to freely choose whether to sign his petition. He also pleaded the content of statements made some time previously by the plant manager to employees who had worked during the strike.
We deal firstly with the issue of Mr. MacKay's position. The evidence establishes that the applicant is a long-standing employee with perhaps the greatest seniority in the plant. He works as a warehouseman, a position in the bargaining unit, and exercises no supervisory or managerial functions. There is no evidence to suggest that he is in a position to influence the job security or prospects for advancement of any employee. While Mr. MacKay's brother, Gordon MacKay, is a foreman there is no evidence whatever to link the applicant's brother to his petition or to rebut his own testimony that he never discussed the subject of this application with his brother. In that regard Mr. MacKay testified that he followed the suggestions in the layman's Guide to the effect that management could have no involvement. The evidence also establishes that Mr. MacKay occasionally takes instructions directly from Mr. Douglas Lowe, the plant manager. Much of Mr. MacKay's work, however, involves little or no supervision, as he is responsible for moving material to and from the plant showroom and preparing and dismantling toy displays in that location. By his own account he would normally be in Mr. Lowe's office once a week.
The Board must obviously look with some care to a petition filed by an employee who is particularly close to management. By the same token, however, such an employee should not lightly be deprived of the right to participate in the processes under the Act respecting union representation. Care must be taken in each case to determine whether the perceived link between management and a given employee could have a material impact on the willingness of employees to express their true wishes. If the evidence were to indicate, as it does not, that Mr. MacKay is in a supervisory capacity or could influence conditions of employment we might have greater concern. There is, however, no evidence of that kind. This is not a case, moreover, where the secrecy of employee sympathies has the same degree of sensitivity that would be found in an application for certification. In weighing this aspect of the evidence regard must be had to the fact that the employees who supported the union had previously engaged in a strike in which the lines between the two camps among the employees were fairly clearly drawn. With a first collective agreement in place, and the identity of those employees who had supported the strike a matter of public knowledge any concern or apprehension with respect to identifying employees who support the union is considerably diminished.
It is difficult to ascribe any weight to the fact that Mrs. Mayhew, who works as the secretary to Mr. Lowe, carried the second petition to the Board for Mr. MacKay during her lunch hour on the terminal date. There is no evidence to suggest that any employee was aware of this limited degree of involvement on the part of Mrs. Mayhew, an involvement which is entirely limited to the period of time after which all of the signatures were obtained. Whether or not one agrees with counsel for the union that Mrs. Mayhew's involvement would not be lost on the employees, the point is of little consequence in that the employees had no knowledge of her involvement prior to signing the petition. It should perhaps be stressed that she too is a member of the bargaining unit. The Board can find nothing sinister in the fact that she carried the petition on her lunch hour or that she had some uncertainty in her recollection of the precise time that it took.
The aspect of the evidence most heavily stressed in the argument of counsel for the union is the fact that Mr. MacKay gathered signatures for his petition openly at the plant gates. He submits that this was tantamount to placing the employees in the position of being questioned in an open meeting about their support for the union. He submits that the situation was still worse in that employees were approached in a location where their encounter with Mr. MacKay could possibly be observed by members of management in the adjacent building. The inference which he asks the Board to draw is that employees would have been intimidated both by the presence of Mr. MacKay and by the possibility that their encounter with him might be witnessed either by a member of management who might be coming through the gates or someone watching from a plant window.
The evidence does not disclose that any member of management came through the gates at the time that Mr. MacKay stood there with his petition on the morning of November 11, 1982. It appears, however, that for a time at least several union supporters stood near Mr. MacKay and heckled him in an attempt to discourage employees from signing his petition. While the possibility of there having been some observation by members of management from the plant building is something the Board must carefully examine, it is difficult, on the evidence, to ascribe any substantial weight to that factor. Firstly there was no evidence adduced to establish which members of management would have been present between the hours of 6:00 and 8:00 a.m. nor any evidence to confirm that any persons were in fact watching Mr. MacKay's endeavours from the plant building. Moreover, with the building being at approximately 100 yards distance from the place where Mr. MacKay stood it appears unlikely to the Board that the employees would have felt a looming and unseen presence as they were approached by Mr. MacKay. In this regard the facts are not unlike those found by the Board in the Northern Telecom case (supra) where in fact one member of management was apparently aware of the activity of the anti-union petitioners.
The circumstances of the morning of November 11, 1982 must be viewed in their context. By Mr. MacKay's own admission there was no secret about what he was doing that day. Virtually all of the employees knew it and were free to sign or not sign his petition as they chose. The issue of being identified with the union is, as the Board has noted, considerably qualified in the circumstances of this case. The employees being approached by Mr. MacKay had experienced a protracted and difficult strike not long before. At that time they made known their support or opposition to the union by their support or opposition to the strike. This is not a situation in which a union was being newly organized and employees need fear for being identified as union supporters. Neither is this a situation in which employees have had an overnight change of heart; with the passage of the strike and a first collective agreement the employees could bring an experienced and considered point of view to bear in their decision to support or oppose Mr. MacKay. In these circumstances the Board is not inclined to conclude that employees who signed Mr. MacKay's petition either on November 11, 1982 or December 1, 1982 were deprived of the ability to exercise their free choice.
Counsel for the union sought to establish management inspiration of Mr. MacKay's petition through the evidence of Mr. Anthony Branco, an employee in the bargaining unit whose father is the assistant warehouse manager in the plant. The evidence establishes that Mr. Branco, who worked through the strike, was in attendance at a meeting between Mr. Lowe and nine other employees held shortly after it became known that the strike had ended and the union had reached an agreement with the company. At that time Mr. Lowe indicated to the employees who had not participated in the strike and who expressed concern about their future that he could not give them raises or promotions without regard to the collective agreement and that their own opportunities for advancement would be necessarily restricted under the union. The Board is satisfied that on that occasion he indicated to the employees that things could only get better if at some future time the union were to be terminated. Mr. Lowe told the employees "hopefully somewhere down the line I'll be able to look after you".
We cannot disagree with counsel for the union that a conversation of that kind is disturbing to the union's interest. It is plainly the statement of the employer's hope that union representation would end in the plant. Even accepting that, however, it is difficult on the evidence before the Board to link that statement with some collusion of complicity between Mr. MacKay and the employer in the origination and circulation of the petition that is the subject of this application. There is nothing in the evidence to suggest that any other employees were aware of the statement, which apparently came to the union's attention on the eve of the hearing. There is also no evidence that management communicated to any employees that it intended to support a petition of termination or that it was sympathetic to Mr. MacKay's endeavours. Employees could, of course, draw their own conclusions as to management's view of the union, particularly in light of the stormy events leading to the first collective agreement. But those bare facts, including the statements of Mr. Lowe, cannot be stretched into an inference that employees were in fear of their jobs or without the ability to freely choose to sign the petition. That is the issue in this application. In effect the union asks the Board to convert suspicion into legal conclusions. That we cannot do. We cannot conclude on the evidence before us that the petition filed does not represent the voluntary wishes of the employees who signed it.
For the foregoing reasons the Board will conduct a representation vote of the employees in the bargaining unit. Those eligible to vote are all employees of the intervener employed at 165 North Queen Street, Etobicoke, save and except foremen and foreladies, office and sales staff and students employed during the school vacation period on 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.
Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with the intervener.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I dissent from the majority decision to accept the petition as a voluntary expression of the employees.
I believe from the evidence it is quite reasonable to conclude that the employees who signed the petition in this case would have a perception that management would be aware of the petition and that management would be informed of who signed and who did not. I believe the employees would be naive if they had any other perception.
Mr. Douglas Lowe the Plant Manager, held a meeting with ten employees shortly after a long bitter strike in 1981. He advised these loyal company employees who had worked during the strike that things could only get better for them if, at some time in the future, the union's bargaining rights were to be terminated. He said "hopefully somewhere down the line I'll be able to look after you". In my view, Mr. Lowe was at this stage planting the seed and was encouraging these loyal company personnel to organize for a termination petition which came to fruition on December 1, 1982.
Mr. Marvin MacKay, one of the most loyal employees, along with a few other employees contacted the Board around the same time that Mr. Lowe had met with them. They received from the Board copies of the layman's Guide and the Labour Relations Act. MacKay was on his way to organizing for the petition in an endeavour to rid the company of the union.
The evidence is quite clear that Marvin MacKay the person who circulated the petition is a privileged employee who reports directly to Mr. Lowe. When pressed under cross-examination MacKay admitted he would visit Mr. Lowe's office at least once a week. Although MacKay has no official managerial classification, it would appear that he has a closer contact with Mr. Lowe the top management person, than the plant foremen have, including his brother Gordon. The foremen report to Mr. Branco the Assistant Plant Manager, whereas MacKay goes directly to Mr. Lowe. MacKay apparently has the privilege to adjust his regular working hours, when he was questioned about leaving early at 2:00 p.m. Friday, November 12th to meet with his lawyer in processing the petition. He said it was normal for him to leave early on Fridays, on November 11th he also varied his lunch hour to gather more names on the petition. He didn't find it necessary to get permission, Marvin MacKay appears to be his own boss outside of Mr. Lowe.
On November 11, 1982 MacKay stationed himself at the main gate from 6:00 a.m. to 7:55 a.m. MacKay is an imposing figure. He must weigh well over 200 pounds. He had the petition on his clip board, the same clip board that he attaches to the front end of his fork lift machine which he drives around the warehouse. MacKay succeeded in having twenty-one employees at this time sign the petition. One by one he had the employees stop, print their name, sign their name, print their address and then MacKay signed as the witness. MacKay would certainly stand out and be noticed, (Counsel for the trade union suggested all he lacked was a neon sign). It is naive to think that management would not observe him and that the employees would not be apprehensive that management would become aware of who did and did not sign. In MacKay's own words, "it was no secret everyone knew what was going on".
By December 1, 1982, Marvin MacKay had succeeded in having thirty-six employees sign the petition. That afternoon he arranged for Mrs. Margeret Mayhew, Mr. Lowe's secretary, to deliver the petition to the Labour Board. Mrs. Mayhew gave evidence that she works in the office with two other women, both of whom report to Mr. Branco the Assistant Plant Manager but that she reports directly to Mr. Lowe. Mrs. Mayhew's story is not credible. She would have the Board believe that she took her lunch break at 2:00 p.m. and travelled by taxi from 165 North Queen in Etobicoke to the Labour Board at 400 University Avenue, downtown Toronto and returned to her office by public transit within forty-five minutes. However, a check of the Board's file shows that the petition was received by the Board on December 1, 1982 at 2:35 p.m. If Mrs. Mayhew was to be believed it would mean she travelled to the Board by taxi and delivered the petition to the 4th Floor at 400 University Avenue in thirty-five minutes and returned by public transit to her office in 10 minutes. Mrs. Mayhew said she didn't get permission to leave from Mr. Lowe. She said it wasn't necessary and it was her forty-five minutes lunch break. She said that she didn't know if Mr. Lowe was even in the office that day. When Mrs. Mayhew was questioned as to the unusually late hour to take a lunch break and, whether she had lunch at all that day, she told the Board that she generally takes her lunch break when she wasn't busy in the office and she seldom ate lunch. Mrs. Mayhew's story is incredible.
The Board has found in a considerable number of cases that it must be guided by the overall environment in the work place and the cumulative impact of events. The Board must be satisfied that the statement of desire filed in support of the termination application represents a free and voluntary expression of the employees wishes. If the Board is not satisfied from the evidence then the Board must not put the trade union's bargaining rights to the test of a representation vote and risk the termination of hard earned bargaining rights.
If the Board finds that the hand of management is involved, the Board must dismiss the petition. Mr. Douglas Lowe the Plant Manager let it be known to the loyal company employees, who worked through the long and bitter strike that the only way they could be suitably treated was to terminate the union's bargaining rights. The only two employees that report directly to Mr. Lowe participated in the processing of the petition. They obviously felt at liberty to take time off during their normal working hours to process the petition.
If the Board finds that it cannot believe the evidence of those employees that sponsored and circulated the petition then there remains no evidence upon which the petition can satisfy the onus of voluntariness and the petition must be dismissed. Marvin MacKay's evidence, that he never discussed the petition that he had planned for a whole year with either his brother a plant foreman and/or with Mr. Lowe the plant manager who he met with at least once a week, is just not believable. The story told by Mrs. Margaret Mayhew, Mr. Lowe's secretary, as I have stated before, is incredible and totally beyond belief.
If the Board finds above all that if the employees signed the petition in an environment and under conditions that they would reasonably believe and would have fears that their expression would become known to management then the Board, in all such cases, has given no weight to the petition and has dismissed the termination application. How could any employee in this case have confidence that their "free" expression would not become known to management, when they were approached to sign the anti-union petition by MacKay. Marvin MacKay is a privileged company man with twenty-seven loyal years to the company. He has a free hand to vary his normal working hours without permission and is a person who reports directly to the top management person of Irwin Toy Limited at least once weekly.
In this era of high unemployment and in this particular case, this Ontario Labour Relations Board should use great care and diligence in weighing the overall environment and the cumulative impact of events, before it comes to the conclusion accepting this statement of desire as being the voluntary expression of the employees and thereby placing the trade union's bargaining rights in jeopardy. The Board said in the Pig got Motors (1961) Ltd., case, 63 CLLC, para ¶ 16,264:
... In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, 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 of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employed purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.
(emphasis added)
This statement and position of the Board applies as much if not more today than it did in 1961. Workers today are faced with the highest rate of unemployment they have been faced with since the great depression of the 1930's. Those that have employment have a natural fear of losing their jobs and normally would not want to provoke management. These are trying times for trade unions. They are especially facing difficult times in their endeavours to organize and represent workers often after spending extended periods of time to accomplish 55% membership, to obtain outright certification. They are met with anti-union petitions to force representation votes and after obtaining certification it is not unusual to be met by a stubborn employer in negotiations for a first agreement. The trade union in this case witnessed that type of experience.
I find that the majority have not carried out a realistic appraisal in weighing the overall environment and the cumulative impact of events when they came to a conclusion to accept the statement of desire as voluntary and ordering a representation vote. I don't believe that the true wishes of the employees could be ascertained within the environment at Irwin Toy Limited.
It is my position that the statement of desire, the petition, is defective on three accounts.
(i) management involvement;
(ii) the two persons that processed the petition lacked credibility;
(iii) the petition is not a free and voluntary expression of the employees that signed it.
I would have dismissed the petition and would have preserved the trade union's bargaining rights.