Brenda Millward, Lilian McFarland v. Service Employees Union, Local 204 A.F.L., C.I.O., C.L.C., 1983 CanLII 739

Ontario Labour Relations Board

[1983] OLRB Rep. April 561

1082—82—R Brenda Millward, Lilian McFarland, Applicants, v. Service Employees Union, Local 204 A.F.L., C.I.O., C.L.C., Respondent, v. K Mart Canada Limited, Intervener

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.

APPEARANCES: Barry Edson, Brenda Millward and Beverly Wilkinson for the applicants; H. Goldblatt and A. Edge for the respondent; Robert A. MacDermid and C. A. Cumiskey for the intervener.

DECISION OF CORINNE F. MURRAY, VICE-CHAIRMAN AND BOARD MEMBER J. A. RONSON; April 8, 1983

1. This is an application for a declaration terminating the bargaining rights of the respondent pursuant to section 57(2)(a) of the Labour Relations Act. In a previous interim decision of the Board (November 8, 1982), the Board found that the bargaining unit in respect of which this application was made was the appropriate one, namely:

All employees of the employer employed at its K Mart store at Bayview Village Shopping Centre in the Municipality of Metropolitan Toronto, Ontario, save and except department managers, persons above the rank of department managers, management trainees, pharmacists, students employed during the school vacation period and persons who are regularly employed for not more than twenty-four (24) hours per week. The Board also found the application to be timely and the petition containing the names of over 50 per cent of the employees in such bargaining unit. Following its interim decision, the Board convened this hearing to hear evidence in writing that the signatories no longer wished to be represented by the respondent.

2. The issue in this case is not whether there has been management influence upon the petition. The respondent did not suggest or allege there was management support or involvement in the preparation and circulation of the petition. The issue is whether the form of the petition itself is such that the Board can conclude the signatures of the employees on the petition were signification in writing of their desire to no longer have the respondent represent them. The petition (a paper measuring 6'h" x 8") consists of a parallel list of twenty-eight signatures with twenty on one portion and eight on the other portion of one side of it. There is at the base of all the names the following hand printed words:

"The above employees have signed freely on termination of union 204 at K Mart 5417".

Ms. Millward testified that when the employees signed the petition it did not contain these words. She added them, in circumstances which will be described below, after all the signatures were affixed. Under the column containing eight names just above these hand-printed words are the following words:

"Witness Ilsic] by"

under which appear the signatures of Ms. Wilkinson, Ms. Smyth and Ms. Millward.

Alongside this are listed three dates (handwritten) of August 30, 1982, September 3, 1982 and September 7, 1982.

3. The only evidence called was by the applicants. The applicant's claim that the reason they started the petition is because they and other employees in the bargaining unit were unhappy with the respondent's handling of a ratification vote on August 29, 1982. The applicant, Millward, and Marie Smyth, and one of the other two witnesses called in support of the application, acknowledged that they were opposed to the respondent prior to the ratification vote of August 29, 1982. During the proceedings which resulted in the respondent being certified on September 10, 1981, Ms. Millward attempted to file with the Board a petition containing signatures of employees opposing the respondent's certification but was unsuccessful because of insufficient names. Ms. Smyth said she opposed the respondent "since it started" which we took to mean the beginning of its organizational efforts at the intervener's Bayview Village store.

4. Ms. Millward and Ms. Smyth testified that following certification of the respondent, a group of between fifteen to eighteen employees held numerous luncheon and evening meetings at various employees' homes to consider what action they could take regarding the certification. Apparently the group resolved to try to remove the union at the earliest opportunity and to this end raised money through raffles and selling donated lunches and dinners in their homes so that legal assistance could be obtained. All contributors and donors apparently were the employees in the bargaining unit.

5. The event which allegedly precipitated the petition's preparation and circulation was a ratification meeting of August 29, 1982 called by the respondent to allow the employees in the bargaining unit a second chance to vote upon a proposed collective agreement the respondent had negotiated with the intervener. The first time the respondent put a proposed collective agreement to a ratification vote was in June of 1982. The result of it was a vote of twenty-five against ratification and twenty-four in favour. Prior to the votes being cast for a second time on the same proposed contract on Sunday, August 29, 1982, Mr. A. Edge, Business Agent for the respondent, was asked by an unidentified employee what would happen in the event of a tie vote. Mr. Edge responded to the effect that "the union would be out". The secret ballot vote was a tie (24/24). Mr. Edge told the assembled employees that he had to phone a Mr. Roscoe. After having left the room for a short while and returned, Mr. Edge announced that he was taking it upon himself to "vote it (the contract) in". The collective agreement which came into effect as a result was for a term of one year with a termination date of September 10, 1982. At least Marie Smyth knew that the time for making an application for decertification was short in these circumstances.

6. A group of approximately 10 — 15 employees who had attended the meeting of August 29, met at a coffee shop the same day following the meeting. Ms. Millward, Ms. Smyth and Beverly Wilkinson, the third witness called by the applicants were there. All three said they were mad at what had been done by Mr. Edge. Apparently, prior to going to the coffee shop, there was a brief discussion in the parking lot outside the premises where Mr. Edge had conducted his meeting. The employees gathered there discussed Mr. Edge's suggestion that they could "appeal" his action. The employees gathered in the parking lot also discussed whether they should go down to the Labour Board to get "decertification documents".

7. As a result of these discussions on August 29, 1982, Ms. Millward, Ms. Wilkinson and one Gladys Hogan came down to the Board the next morning at 8:30 a.m. and talked to someone on the third floor about their intentions. The witnesses could not accurately recall the name of the individual they spoke with. Ms. Wilkinson said that this individual advised them to go to 1 Credit Union Drive (the respondent's office) write out a complaint about how the ratification vote was held and give this complaint to Mr. Roscoe. Both Ms. Wilkinson and Ms. Millward claimed that he responded to their request as to how to go about decertifying the union by giving them three books: the Labour Relations Act, the Regulations, and the Guide to the Labour Relations Act. He gave them in addition four copies of Form 17 and he told them to take the Form 17 and let the employees know that it was a decertification form. He is alleged to have advised them that if there was not enough room on the form for the names of all the employees then another piece of paper should be used. The witnesses claimed he told them to be sure the employees saw the Form 17. They denied that he ever told them to write anything on the additional paper necessary for names. The Form 17 has the heading APPLICATION FOR DECLARATION TERMINATING BARGAINING RIGHTS. After a space for the parties' names the body of the document states:

The applicant applies to the Ontario Labour Relations Board under section (57,58,59 or 60) of the Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent.

The applicant states:

1. (a) address of applicant:

(b) address of applicant for service:

(c) address of respondent:

2. (a) name of employer of employees affected by the application:

(b) address of employer:

3. Detailed description and geographic location of the unit of employees for which the respondent is the bargaining agent, including the municipality or other geographic area affected:

4. Approximate number of employees in the unit described in paragraph 3:

5. Other relevant statements (attach additional pages if necessary):

At the base of Form 17 there is the following paragraph:

(Where the application is made under section 57 of the Act.) The applicant submits with the application the document or documents by which employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the respondent.

Page 48 of the Guide states under the question:

How do employees apply to terminate a union's bargaining rights?

The application is made on Form 17, four copies of which must be filed with the Ontario Labour Relations Board. The application under section 57 must be accompanied by a petition signed by at least 45 per cent of the employees in the bargaining unit indicating that they no longer wish to be represented by the union.

8. Sometime later on Monday, August 30th, Ms. Millward and Ms. Wilkinson went to the respondent's offices and submitted a written complaint to a Mr. LaLiberty about how Mr. Edge had conducted the ratification meeting. Mr. LaLiberty indicated to them that he would notify them as to a meeting which would be held regarding the matter two weeks from then, approximately September 10, 1982. No evidence was given as to whether any meeting did take place or what the result of the appeal was.

9. Meanwhile Ms. Millward and Ms. Wilkinson continued their pursuit of decertification. Ms. Smyth joined Ms. Millward and Ms. Wilkinson in signing other employees up. Ms. Wilkinson had custody of the petition at all times until it was delivered by Ms. Millward to the Board office on September 8, 1982. Either Ms. Millward or Ms. Smyth were with her at all times when signatures were being obtained. Ms. Wilkinson saw all twenty-eight employees sign the petition. There was much confusion and lack of certainty about the precise dates, times and location of obtaining signatures. The evidence of the applicants is that each employee who signed the petition was shown a blank copy of Form 17 prior to signing. All the signatures were obtained prior to or after work, or on lunch or supper hours. All signed in various locations outside of the intervener's store. For some of those signing (between 9 — 13 who had attended the coffee shop conference of August 29, 1982) little explanation of what Form 17 and the petition meant was necessary. Twenty-six of the twenty-eight who signed the petition had attended the ratification meeting of August 29, 1982. The employees were alerted to the opportunity for them to sign a petition for decertification by "word of mouth" either using the telephone or personally.

10. The petition was delivered together with a completed Form 17 to the Board by Ms. Millward. She testified that she added the words "the above employees have signed freely in termination of union 204 at K Mart 5417" at the base of the petition because someone at the Board would not accept it without some sort of "heading". She readily acknowledged that the words were added after all the other writing and signatures were on the petition because of the insistence of an unidentified person at the

Board who she spoke with on the day she filed the application. She stated that she had, when circulating the petition opposing the certification of the union, written a heading to this effect prior to obtaining signatures but she did not write one on the decertification petition until she was so advised by one of the Board's personnel.

11. Section 57(3) provides:

57.-(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.

Section 73 of the Board's Rules of Procedure, R.R.O. 1980, Reg. 546 sets out what the Board will accept by way of evidence in an application for a declaration terminating bargaining rights. The primary evidence of signification of a wish to no longer be represented by a union is evidence in writing and any oral evidence can only be accepted by the Board if it is to identify and substantiate the written evidence. The relevant portion of section 73 is:

73.-(l) Evidence ... of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application ... for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

(2) No oral evidence ... of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred o in subsection (1).

(4) An employee or group of employees who has filed a statement of desire in the form and manner required by this section may appear and be heard at the hearing ... in person or by a representative.

(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witness as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

(emphasis added)

12. Counsel for the applicants argued that the Board ought to consider the petition in conjunction with Form 17 as sufficient evidence in writing of the desire of the employees who signed the petition to oppose the union. He relied on the evidence of the longstanding opposition the three witnesses had to the respondent and the fact that there had been numerous meetings at employees' homes even prior to August 29th, where plans for the decertification application and hiring a lawyer were discussed. This together with evidence of Mr. Edge's conduct on August 29, 1982 ought to lead the Board to the conclusion that the petition expresses the true wishes of the employees that the respondent be decertified. The explanation for the lack of any heading or preamble on the petition is that the person Ms. Millward and Ms. Wilkinson spoke to at Board offices on Monday, August 30th never indicated to them such a thing was necessary. The circulators of the petition utilized Form 17, which had been given to them by this person by showing it to the eighteen prospective signatories. Counsel for the applicants cited no cases to support his reasoning but distinguished this case from other cases where the Board has rejected petitions which contained no heading at the time signatures were affixed to the petition.

13. Counsel for the intervener cited O.H.A. Blue Cross, [19801 OLRB Rep. Dec. 1759 at p. 1769 in support of the proposition that the Board must adjudge the "ostensible wishes" of the employees from the direct sponsors of the petition and the circumstances. He submitted that in these circumstances the blank Form 17 and the signatures are sufficient evidence in writing. He indicated that were it not for the decision in Re Fisher et al; and Hotel, Clerks, and Restaurants, Tavern Employees' Union, Local 261 et al., (1980) 1980 CanLII 1882 (ON HCJ), 28 O.R. (2d) 462 revg. [1979] OLRB Rep. May 395, in all probability the Board would not have even heard the evidence regarding the obtaining of signatures on the petition. This particular inquiry reveals no evidence from which to conclude either management involvement or that employees did not understand what they were signing. Therefore, the Board should uphold the petition as a voluntary signification in writing of more than forty-five per cent of the bargaining unit and order a vote pursuant to section 57(3).

14. Counsel for the respondent agreed with counsel for the intervener regarding the change in Board procedure that has been wrought by the Fisher decision, supra but he cited numerous decisions of this Board pre-dating Fisher (N.D. Applegate Ltd., [19631 OLRB Rep. May 104, Bennett & Wright Ltd., [1965] OLRB Rep. Nov. 514; Preslund Iron & Steel Ltd., [1966] OLRB Rep. Feb. 817; Bayle — Midway Canada Ltd., [1966] OLRB Rep. Dec. 607; Wilson — Monroe Co. Ltd., [1973] OLRB Rep. Dec. 647; and U.B.A. Chemical Industries, [19751 OLRB Rep. March 198), which in his estimation stood for the proposition that all "blank" petitions were seriously flawed because, even with an explanation, they did not indicate signification of opposition to the union in writing. While conceding that the Fisher decision required the Board to hear explanations for flawed preambles or headings to petitions, the underlying rationale for their rejection has not been changed, i.e., their unreliability as evidence of the wishes of the signatories. In the wake of the Fisher decision the respondent contended that only in circumstances where the evidence is "letter perfect", i.e., where the originators and circulators did not contradict themselves at every turn but gave a credible explanation, could the Board act on evidence explaining a defective petition. He claims that there were such serious contradictions in the evidence as to not amount to an explanation at all. Alternatively, he claimed that the petition, even if it had been in proper form, had not been orally substantiated, in any event, in compliance with Rule 73.

15. In the past the Board has rejected so-called "blank" petitions even where it has evidence that there were oral explanations given to each signatory as to the use of which his or her signature would be put. This is so because obtaining signatures on the basis of oral explanations is "a suspicious procedure inherently incapable of satisfying the Board that the petition accurately reflects the voluntary and true wishes of the employees involved" (see UBA Chemical Industries, [1975] OLRB Rep. March 198). This is, no doubt, the same rationale behind the stipulation in section 57(3) of the Act that the petitioners produce evidence in writing of signification by them that they no longer wish to be represented by a trade union.

16. The facts of this case raise the question of whether Form 17, together with the petition, constitute an expression "in writing". We think that the wording of Form 17 makes it clear the purpose for which the signatures are being obtained and the use of it in this way does not suffer from the inherent liabilities of a "blank" petition explained orally to signatories. All of the decisions the respondent cited were situations where the purpose of the petition was orally explained to the signatories. In Bennett & Wright, [1965] OLRB Rep. Nov. 514 the Board indicated at pages 514—515 that because the petition contained no preamble at the time it was signed, "there was nothing on any of the sheets containing signatures and there was nothing before any of the signatories at the time the sheets of paper (i.e. petition) were signed to indicate the intention or purpose of the signatories signing them". In this case there was something before the employees which indicated what was the purpose of their signatures — one of the Board's own Forms. The decisions where the Board has rejected oral explanations as proper signification of opposition to the trade union are therefore distinguishable on the facts.

17. In considering evidence where written specification of opposition to the union is unconnected with the document containing the signatures of employees, obviously the Board must make determinations about credibility. In this case, based upon the demeanour of the witnesses and the history of events regarding certification and negotiations, we have found that the signatories to the petition were in fact shown Form 17 and therefore knew the purpose of their signing the petition. The confusion of the witnesses regarding precise dates, times and locations of obtaining the signatures on the petition was due to an obvious lack of preparedness for the experience of describing to us how, when and by whom the petition was originated and circulated rather than to a lack of honesty or candour.

18. For all these reasons the Board finds that the applicants have produced evidence which indicates more than forty-five per cent of the employees in the bargaining unit at the time the application was made have voluntarily signified in writing that they no longer wish to be represented by the respondent union as of September 22, 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 making such determination.

19. The Board accordingly directs that a representation vote be taken of the employees of K Mart Canada Limited. Those eligible to vote are all employees of K Mart Canada Limited employed at its K Mart store at Bayview Village Shopping Centre in the Municipality of Metropolitan Toronto, Ontario, save and except department managers, persons above the rank of department managers, management trainees, pharmacists, students employed during the school vacation period and persons who are regularly employed for not more than twenty-four (24) hours per week, 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.

20. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with K Mart Canada Limited.

21. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER B. L. ARMSTRONG;

1. On the evidence this application should be dismissed.

2. Brenda Millward, one of the applicants, opposed the union from the outset of the union's organizing drive and circulated a petition during the certification proceeding. She knew at that time that a heading was required for any petition she was circulating to get rid of the union.

3. She testified that she was given a copy of the Guide to the Act and Form 17, an Application for Declaration Terminating Bargaining Rights. She also testified that she read the Guide to the Act and circulated the petition without a heading. She held meetings at her home and at the home of other employees for the purpose of getting rid of the union.

4. The evidence called by the applicants was inconsistent, confusing and misleading. All the signatures on the petition were not proved and a sentence was added at the base of the petition after the signatures were obtained, namely:

"The above employees have signed freely on termination of Union 204 at K-Mart 5417."

In my opinion, this petition falls far short of the requirements as set out in section 73 of the Rules of Procedure. There was no evidence in writing of employees who desired to no longer be represented by the union. The only evidence of the employees' desires was the oral evidence given at the hearing, which cannot be accepted by the Board, by reason of Rule 73(2). The application for decertification should therefore be dismissed.