[1983] OLRB Rep. August 1269
0656-83-R Labourers' International Union of North America, Local 183, Applicant, v. Bramalea Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Richard M. Brown, Vice-Chairman and Board Members B. L. Armstrong and I. M. Stamp.
APPEARANCES: Roger Aveling and Marino Toppan for the applicant; John P. Sanderson, Q. C., David Ptak and Paul Reid for the respondent; Archie Blair and Robert N. Grandy for the objectors.
DECISION OF THE BOARD; August 5, 1983
This is an application for certification in which the parties met with a Board Officer prior to the hearing, reached agreement on all matters in dispute between them, except the significance of a petition filed by the group of employees, and agreed to waive their right to a formal hearing on the agreed matters.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board finds the following bargaining unit to be appropriate for collective bargaining: all employees of the respondent engaged in cleaning and maintenance, including resident superintendents, at 10 Kensington Road, 15 Easthourne Drive, 37 Eastbourne Drive, 9 Lisa Road, 10 Lisa Road, 11 Lisa Road, 790 Clark Boulevard, 3 Knightsbridge Road, 11 Knightsbridge Road, 2 Silver Maple Court, 4 Silver Maple Court, 6 Silver Maple Court, 8 Silver Maple Court, S Kings Cross Road and 15 Balmoral Drive in the City of Brampton, save and except property manager and persons above the rank of property manager, and students employed during the school vacation period.
The applicant has filed documentary evidence which establishes that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on July 12, 1983, the terminal date fixed for this application and the date which the Board established, pursuant to section 103(2)(j) of the Act, to be the time for determining membership under section 7(1) of the Act. This evidence is in the form of membership cards containing a combination application for membership and receipt. The applications are signed by the individual employee concerned, and the receipt is countersigned by the collector and acknowledges the payment of one dollar. These cards comply with the membership criteria prescribed by section 1(1)(1) of the Act and established by the Board pursuant to section 103(2)(j). The documentary evidence of membership is supported by a properly completed Form 9, Statutory Declaration, attesting to its authenticity. There is nothing to suggest the employees who signed these cards did not do so because they decided of their own free will to be represented by the applicant. Accordingly, in the absence of other evidence relating to membership, the union has a sufficient level of support to be certified pursuant to section 7(3) of the Act without recourse to a vote.
However, a group of employees have also filed a petition signed by a number of people who are opposed to the certificatioin of the applicant. This petition contains the names of some individuals who previously signed membership cards and paid one dollar to the applicant, and who thereby became members of the union within the meaning of section 1(l)(l) of the Act. Indeed, less than fifty-five per cent of the employees in the unit signed a card but did not sign the petition. Consequently, if the employees whose names appear on both a card and the petition signed the petition voluntarily, the Board would normally exercise its discretion under section 7(2) of the Act by ordering a vote. Conversely, a petition spawned by improper employer influence, either real or perceived, would be disregarded and would not preclude certification on the basis of membership evidence.
The Board's refusal to hold a vote in response to an involuntary petition is best understood when viewed against the backdrop of certification in the absence of a petition. Section 7 of the Labour Relations Act directs the Board to order a vote when a trade union demonstrates that between forty-five and fifty-five per cent of the employees in the bargaining unit are union members. However, the Board is empowered to issue a certificate, without a vote, upon application by a trade union which has signed more than fifty-five per cent of the employees, although the Board may conduct a vote. Over the years the Board's general policy has been not to order a vote in these circumstances. The vast majority of all certificates are granted on the basis of membership evidence. The Act has been amended on numerous occasions, but the Legislature has made no effort to change this practice. Indeed, in 197S the statuory threshold for certification without a vote was lowered from sixty-five to fifty-five per cent. The decision to favour cards over votes in this way rests in large measure upon a judgement about the reliability of cards as an indicia of union support, the desirability of employer participation in an organizing campaign — cards may be signed before the employer knows of the organizing drive but a vote cannot be held without notifying management — and the problems arising out of the delay inherent in an election supervised by the Board. These issues are canvassed in Weiler, Reconcilable Differences (Carswell: Toronto, 1980) at 37 to 49.
A petition signed by employees who had earlier become union members appears in a small minority of certification cases. A change of heart may be produced by a spirited debate among employees concerning the virtues of collective bargaining. In British Columbia and under the Canada Labour Code dialogue among employees is cut off when the union applies for certification. This is the date for determining the level of union support, and any shifts in allegience after this time are disregarded. See Plateau Mills Ltd., [1977] 1 Can. LRBR (B.C.) and Canadian Imperial Bank of Commerce, [1979] 1 Can LRBR 19 (Can.). A longer time frame for debate among employees is allowed in Ontario. The regulations issued under the Act call for the establishment of a terminal date — between five and ten days after the date of application — and direct the Board not to accept evidence relating to membership filed after the terminal date. A notice is posted in the work place setting out the terminal date and advising employees that any representations which they wish to make must be received by the Board before that time. A petition filed before the terminal date is taken into consideration so long as it is voluntary in the sense that the petitioners were not motivated by employer influence, either real or percieved. A voluntary petition which places a union's claim to be supported by more than fifty-five per cent of the employees in doubt, because some employees have signed a card first and then the petition, will normally result in a vote.
But an involuntary petition is of no assistance in determining how many employees want union representation. Instead this document is a guage of the responsiveness of employees to employer influence. As the Board said in Pigott Motors, 63 CLLC ¶16,264:
"The Labour Relations Act contains detailed provisions designed to protect the rights of employees to become members of, and to select or reject a particular or any trade union as their collective bargaining agent and to bargain collectively or individually with their employer. It is an important function and duty of this Board under the legislation to be circumspect and viligant to see that these rights are preserved and not made illusory.
There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. One of these facts is that there are still some employers who, through ignorance or design, so conduct themselves to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer, and of his natural desire to want to appear to identify himself with the interest and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obviious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason, and because the Board has discovered in a not inconsiderable number of cases, that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence in a form and of a nature which will provide some reasonable assurance that a document, such as a petition, signed by employees purporting to express opposition to the certification of a trade union truly and accurately reflects the voluntary wishes of the signatories. (See for instance, the Sinnott News Case, CCH Canadian Labour Law Reporter, 1955-59, Transfer Binder ¶16,114 at p. 12,209, and the Fleck Manufacturing Ltd., Case, CCH Canadian Labour Law Reporter, vol. 1, ¶16,236, at p. 13,201). In seeking this assurance, the Board draws no distinction between documents which purport to express a desire on the part of employees to resign from the union and those which purport merely to express opposition to the applicant as their collective bargaining agent. In other words, for this purpose, it does not seek to distinguish between the two matters of membership and representation."
The reason why the Board does not order a vote in the context of an involuntary petition is obvious. In the absence of a petition, public policy has declared cards are a better indicia of union support than a vote, for the reasons alluded to above. An involuntary petition tips the scales even further in favour of documentary membership evidence over the ballot box.
Is the petition in this case voluntary? The Board heard evidence from the two employees who circulated the document — Archie Blair, a maintenance man and Bob Grandy, a resident superintendent who was hired one week before the application.
The scene opens on a meeting held in a recreation room in one of the employer's apartment buildings at 10 Lisa Road, commencing at 11:00 a.m. on Tuesday, July 7. The meeting was called by the employer two or three days in advance and each employee received a written notice of it. In attendance were all, or almost all, of the employees in the bargaining unit. Frank Hammer, the maintenance manager, and Paul Reid, the general manager, were also there. Mr. Hammer is the immediate supervisor of all of these employees. The gathering lasted about one hour.
The employer handed out original copies of the Board's Form 6, Notice to Employees of Application for Certification to the resident superintendents. They were told the notices were to be posted in their buildings until the following Thesday. Morris Sullivan testified that Frank Hammer also said employees must respond by Thesday, although the witness seemed not to be certain. Archie Blair did not recall Hammer saying this. According to Blair, Hammer told those present to read the form very carefully and said the decision of what to do in response to it was theirs to make.
Archie Blair testified there was discussion about problems employees had encountered in the course of doing their work. He gave as an example the difficulty experienced by some cleaners in obtaining stock. Other issues addressed related more directly to the employment relationship. A resident superintendent asked whether there would be any advantage in paying husbands and wives separately rather than as a team. Either Hammer or Reid undertook to look into this matter, from the perspective of taxes, OHIP, unemployment insurance and other benefits, and to report back to the employees as to which approach would be most advantageous to them. Grandy stated the main purpose of the meeting was to discuss "taking the work load off cleaners and superintendent". One of the management representatives said the employer wanted to determine the capabilities of each employee and to place them in the jobs they could do best. Frank Hammer told them if they did their jobs right they would get the first choice to work, and to live in the case of resident superintendents, in new buildings opened in the future. He told the employees they could go anywhere in the company and said he had started as a cleaner.
This meeting must be viewed in the context of a reorganization scheme introduced some six months earlier when the business came under new management. Mr. Blair testified changes have been introduced throughout this period. For example, work loads have been altered. The employer has also called superintendents to a meeting every two or three weeks to discuss their work and the proposed innovations. However, there has not been a meeting of all staff including maintenance workers and cleaners in the three months preceding the application.
Mr. Blair obtained a copy of Form 6 from Frank Hammer during the meeting on July 7. Shortly after the gathering ended, Blair approached Hammer and asked a question about the union. Mr. Hammer replied he couldn't talk about it. Blair then spoke to a few fellow employees about the certification application. That evening he went to Bob and Ann Grady's residence. Grady has twice appeared before the Nova Scotia Labour Relations Board in certification cases involving a group of employees who opposed the applications. He provided the wording for this petition and his wife wrote it:
"File #0656-83-R July 7, 1983
To the Ontario Labour Relations Board.
We the undersigned are opposing the application of union local #183. My signing of this petition is voluntary. To the best of my knowledge, Bramalea Ltd. does not know of this petition. Employer concerned Bramalea Ltd."
Messrs. Blair and Grandy signed the petition that night. Grandy obtained signatures from two former employees on the morning of Saturday, July 9. Blair and Grandy devoted the morning of Friday, July 8 and the afternoon of Monday July 11 to the petition, and together they visited the rest of forty-one petitioners. All thirty-nine signed at the location of one of the employer's apartment buildings. Some resident superintendents were called upon at the doorway to their apartments. Blair visits these buildings in the course of his normal duties to deliver mail. The majority of the petitions were signed in the presence of at least one other petitioner and often several petitioners were present. The encounters between the two circulators and the petitioners were brief. Archie Blair and Bob Grandy said they thought a union was a bad thing, because the new management should have a chance to implement their plans without any complications. Each petitioner either read the document or, in the case of some who didn't have their glasses or couldn't understand a word, listened while it was read to them. The signatures of those who had signed earlier were visible. Grandy estimated that six petitioners, including the two former employees, contacted him to say they wanted to sign the petition. Blair stated "lots" of people took the initiative in this way.
Both Blair and Grandy were absent from work for approximately eight hours while circulating the petition. Archie Blair suggested Grandy might have worked in the evening to make up for this time off. Mr. Blair testified he asked Frank Hammer for permission to leave work, on the pretence Blair was attending to his wife who recently had been in and out of hospital. According to Grandy, the employer was not aware he was not at work.
Counsel for the applicant did not contend Messrs. Blair and Grandy were acting in collaboration with management to defeat the certification application. Instead the Board was urged to consider the "cumulative impact" of all of the circumstances upon the volition of employees. Counsel argued that the distribution of Form 6 to employees at a meeting has a greater impact than posting this notice in the work place. He suggested the employer's promises created a "sneaking suspicion in the back of the employees' minds" that these improvements would not be implemented if the union was certified. Finally, we were reminded the petition was spawned shortly after the meeting on July 7th.
Counsel for the respondent argued the employer was merely complying with the Board's instructions in distributing original copies of Form 6 to the resident superintendents for posting. He noted no charges had been filed against his client, and suggested there was no evidence which cast any doubt on the voluntariness of the petition.
The onus of demonstrating that a petition is voluntary rests upon those who present it: Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387. In the most blatant cases, the employer actively participates in the origination and circulation of the petition, but the Board is on guard against subtle variations on this theme. The perceptions of employees are as important as the actions and motives of management. A petition may be tainted by employer conduct which is reasonably perceived to be motivated by anti-union sentiment even though it is not: Mitten Industries Galt Limited, [1979] OLRB Rep. Mar. 154. Similarly, actions by petitioners which give rise to a reasonable perception of employer support may lead the Board to discount a petition: Baltimore Aircoil Interamerican Corporation, supra.
The petition was drafted and circulated shortly after the gathering on July 7th. That meeting was obviously on the minds of all of the employees who signed the petition. Standing alone, the distribution of Form 6 at the meeting is of little significance. In addition, we cannot find the employer told those present they must respond to the forms by the following Tuesday. However, the larger setting cannot be ignored. By handing out the forms the employer, intentionally or otherwise, drew a connection between the application for certification and the issues discussed at the meeting. Representatives of management made promises concerning new buildings and the payment of husband and wife teams. Employees were told of the opportunities for advancement by those who earned it. Intended or not, one effect of these statements was to remind employees that general terms and conditions of employment and individual progress lie within their employer's control. This implicit message in juxtaposition to the application for certification would lead employees to suspect that their response to the union would influence their employment future. Although some of the topics discussed were part of an ongoing reorganization scheme, this was the first general staff meeting in at least three months, and employees would naturally conclude it was called in response to the application for certification.
The meeting was held during working hours and all employees received notice of it. No doubt they thought attendance was obligatory. Employees who think they are required to attend a meeting may readily conclude they are expected to adhere to the employer's views stated there, either expressly or merely impliedly. See Mitten Industries Galt Limited, supra.
Archie Blair and Bob Grandy took time off work to circulate the petition. In view of the meeting of July 7th, some petitioners must have suspected that these two employees had been granted time off by their employer for this purpose. The wording of the preamble could not totally negate this perception.
All of the evidence leads to the conclusion that the petition is not a voluntary statement of the desires of the employees who signed it.
A certificate shall be issued to the applicant for the described bargaining unit.