[1983] OLRB Rep. January 92
1742-82-R Jean Marc Joanisse, Applicant, v. The Retail, Wholesale and Department Store Union, AFL:CIO:CLC: and its Local 414, Respondent
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members W. G. Donnelly and H. Kobryn.
APPEARANCES: Stephen T Carlo and Richard Makuch for the applicant; James Donnelly and Buddy Fischer for the respondent.
DECISION OF THE BOARD; January 27, 1983
- This is an application pursuant to section 57 of the Labour Relations Act for a declaration that the respondent no longer represents the employees in the bargaining units defined in the collective agreement which terminated December 31, 1982, namely:
FULL-TIME UNIT:
All employees of Jean-Marc Lalonde Limited, carrying on business as Marc Lalonde at Alfred, Ontario, save and except store managers, persons above the rank of store manager, corporate officers, meat department manager, office staff, persons regularly employed for not more than twenty-four hours a week and students employed during the school vacation period.
PART-TIME UNIT:
All employees of Jean-Marc Lalonde Limited, carrying on business as Marc Lalonde at Alfred, Ontario, regularly employed for not more than twenty-four hours a week and stude ts employed during the school vacation period, save and except store managers, persons above the rank of store manager, corporate officers, meat department manager, and office staff.
The application, having been brought on December 9, 1982, is timely and, if the statements of desire ("petitions") filed in support of it are found to be voluntary, the number of signatories to the petitions would be more than forty-five per cent of the employees in the bargaining units described above. Therefore, the sole issue before the Board was whether the petitions are voluntary. Two lists of employee names were filed, but only one of them contained signatures, 15 in total.
The only evidence before the Board is that of the originator and circulator of the petition, the applicant. Mr. Joanisse admitted he is the son of the owner of the numbered company (454855 Ontario Ltd.) which employs the employees in the above-described bargaining units and which is bound by the collective agreement. A few months prior to the respondent being certified as bargaining agent in November of 1980, his father's company acquired ownership of Marc Lalonde's store at Alfred, Ontario. Mr. Joanisse himself has been working in the store since August of 1981 as a butcher. He indicated that on the store manager's days off and vacation absences, he acted as manager of the store. Mr. Joanisse acknowledges that he guessed employees could view him as a part of management but pointed out that he was not described as such in the bargaining unit and therefore he paid dues in the normal course to the defendant. Mr. Joanisse's father does not live in Alfred. Mr. Joanisse resides during the work week in Alfred at a residence owned by his father and some 1000 ft. away from the store. He resides with his father on weekends at a place other than Alfred.
Mr. Joanisse got the idea that a petition should be circulated sometime in December of 1981 or January of 1982. He had concluded that there was little utility to the union in a store of 24 employees where "everybody knows everybody". He felt that the reason why the certification took place originally was because of the old owners and he, together with a lot of the employees, thought the union was not worth having any more. There had been a petition two years ago where employees had indicated a desire to no longer be represented by the union but this petition had been "too late". Mr. Joanisse did not explain what he meant by this. Mr. Joanisse contacted his father's lawyer and was referred by him to another lawyer. The latter obtained the necessary forms from the Board. Mr. Joanisse indicated that he had supplied his lawyer with the names of those in the bargaining unit grouped as follows: those he was certain were strongly against the union, those he thought were against the union, and those who he felt certain strongly supported the union. The first two groups were contained in a document his lawyer prepared showing 15 typed names. The latter were contained in a document showing 9 typed names. Both had the typed heading:
RE: MARC JOANISSE AND AFL;CIO;CLC, LOCAL 414]
We, the undersigned signify that we no longer wish to be represented by the Respondent.
Mr. Joanisse only sought the signatures of those on the 15-name list. Attached to this list was a copy of Board Form 17 — Application for Declaration Terminating Bargaining Rights. Mr. Joanisse circulated it sometime in late November or early December 1982. All of those he approached signed. The time lapse between the first and last name signed was 3—4 days. Some were approached at the store on their working hours to sign the petition and they did so. Some were approached at the store on their break and signed. Some signed after having attended a meeting at Mr. Joanisse's residence in Alfred, having been personally invited by Mr. Joanisse to attend at such meeting. Some of those invited to three such meetings were told the purpose of the meeting was in order for Mr. Joanisse to "talk to them about something". When any of them queried this, Mr. Joanisse said he couldn't talk about it in the store. He indicated to only a few of those invited to his home that the subject matter of the discussion at his home would be the petition he was organizing to get the union out. All of those he invited to his home came. Many had never received an invitation to his home before, although a few he met socially and had been "picked up" at his home to go elsewhere. Three of the employees, after having signed the petition, attended subsequent meetings and visibly supported Mr. Joanisse's efforts.
Mr. Joanisse appeared to have consistently explained what the application was for — reading Form 17 to the prospective signatory. For some signatories the explanation or prelude prior to signing was very short, because in Mr. Joanisse's opinion they were against the union and it did not take much persuading. For others the conversation or discussion lasted longer. In the case of the three employees who signed and later visibly supported Mr. Joanisse, they attended a 1-2 hour meeting at Mr. Joanisse's home. At this and a subsequent meeting where the three employees, together with other employees, were in attendance, Mr. Joanisse explained how it would be better without a union. He pointed out that the employees were paying $200-$300 per year for protection but the union was not protecting them. He pointed out to some or all the signatories that the reason why his father's stores in Ottawa were not unionized was because of how his father is in business and how he treats his employees. Mr. Joanisse claimed personal knowledge of his father's business and employee practices because of having known his father for 23 years and because he had worked in his stores. (Mr. Joanisse did not testify as to his age but he appeared to be in his 20's.) He indicated his father was approachable and could resolve an employee's problem. There was therefore no use for stewards. Mr. Joanisse initially admitted he indirectly said to some employees there was a possibility of a strike in the then current set of negotiations but then later in his testimony said he could not recall specifying this at the time he was circulating the petition. He did admit that he spoke to some employees before they signed about the nature of the union's demands at the bargaining table and the possibility of a strike or cessation of operations. He did so by pointing to the number of companies going into bankruptcy and explaining that this was caused by "unions telling companies what to do". Mr. Joanisse denied that anything he said amounted to either a threat or a promise. He also indicated that he believed the manager of the store did not know of his circulating the petition because he kept it secret.
The single most significant factor on the evidence before us is the family relationship between Mr. Joanisse and his father, the effective owner of the store in Alfred. While the Board has in previous cases pointed out that the mere existence of a family relationship is not conclusive on the issue of whether a petition is voluntary (see Otto's Deli, [1980] OLRB Rep. Nov. 1673), and has found in some circumstances that a petition executed by a family member could be adjudged voluntary (see International Beverage Dispensers and Bartenders Union Local 280, [1981] OLRB Rep. June 690), the Board finds that on the facts of this case the applicant has not satisfied us that the petition was voluntary.
We are satisfied that in these circumstances employees could reasonably perceive Mr. Joanisse to be an arm of his father and, hence, management. He was the manager when the regular manager was away. In his discussions with some of the employees he relied upon his knowledge of his father's business practices to show the lack of need for a union and he could reasonably be regarded as an agent for his father's business practices to show the lack of need for a union and he could reasonably be regarded as an agent for his father's interests and not merely a fellow employee expressing an honestly-held, independent belief. He not only was his father's son but acted the part and these were close family ties which must have been apparent to some, if not all, of the employees who signed the petition.
For all of these reasons the Board hereby finds the petition not to be voluntary and therefore dismisses the application.