United Food and Commercial Workers International Union v. Zymaize Company, 1983 CanLII 820

1680-82-R United Food and Commercial Workers International Union, A.F.L., C.J.O., C.L.C., Applicant, v. Zymaize Company, Respondent, v. Group of Employees, Objectors

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. W. Murray and B. K. Lee.

APPEARANCES: Paul Cavalluzzo, Ron Lebi and Vince Gentile for the applicant; James T Heather, David M. Davis and Larry Moss for the respondent, C. J. Abbass, Wayne R. Allan, Dale R. Northey and Allan W Johnston for the objectors.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER B. K. LEE; January 27, 1983

This is an application for certification.

000

The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
The parties met with a Board Officer on the day scheduled for hearing, and were able to resolve their disputes with respect to the composition of the bargaining unit. Having regard to the agreement of the parties, the Board finds that all employees of the respondent at London save and except Team Leaders, persons above the rank of Team Leader, engineering and laboratory staff, office and sales staff, students employed in a co-operative training programme, persons regularly employed for not more than 24 hours per week, students employed during the school vacation period and persons covered by a subsisting collective agreement, constitute a unit of employees of the respondent appropriate for collective bargaining.
For the purpose of clarity, the Board notes the further agreement of the parties that laboratory staff working as part of a team and the stockroom attendant are included in the bargaining unit.
The meeting with the Board Officer also established that there were 80 employees in the bargaining unit on the date the application was filed. Of those, 55 employees signed union membership cards which the applicant filed in support of this application. That represented some 68 per cent of the bargaining unit, and would normally have entitled the applicant to certification without a vote. There was, however, also filed in this matter a timely statement in opposition to the application, signed by a number of employees who had previously signed membership cards in the applicant. If found to be voluntary, this would reduce the applicant's unequivocal membership evidence to 43, just below the 55 per cent level normally required for outright certification. The Board accordingly directed that an inquiry be held into the voluntariness of the statement in opposition, in order to ascertain whether the statement cast sufficient doubt on the full membership evidence to cause the Board to direct the taking of a representation vote.
The evidence discloses that the key instigator behind the statement in opposition, or "petition", was Mr. Wayne Allan. The respondent operates a facility, mostly automated, which produces sweetener products from corn. Mr. Allan is an operator in the control room, and exercises no supervisory responsibilities. The respondent's work force is divided into four teams, and Mr. Allan is a member of Team 1. These teams rotate through a shift schedule of 3 days on, followed by 3 days off, and each is under the direct supervision of a Co-ordinator, as well as a Team Leader. The Board heard virtually no evidence with respect to the responsibilities and authority of the Team Leaders, other than the fact that they assign work and make decisions with respect to the production process. Both the union in its application and the company in its reply took the position that the Team Leaders were excluded from the bargaining unit. However, the union subsequently wrote to the Board and requested that its bargaining unit description be amended to include Team Leaders. This requested amendment was posted by the respondent, at the Board's request, on its bulletin boards on December 8, 1982, seven days after the original Notice of Application was posted. At the meeting with the Board Officer which took place on the day scheduled for hearing, the union again concurred in the company's position that Team Leaders ought to be excluded, and that, as indicated above, was reflected in the bargaining-unit description finally agreed upon by all parties. There was never any dispute but that the Co-ordinators were excluded.
Mr. Allan testified that he became aware of the union's organizing campaign about the middle of November of 1982. For his own reasons he was opposed to the trade union coming in, and on Sunday, November 28th, telephoned his brother, who was an experienced union representative working elsewhere. Mr. Allan's brother suggested that Mr. Allan sign a union card, but ultimately explained to Mr. Allan the steps necessary in opposing an application for certification. Mr. Allan agrees that his brother cautioned him that there must not be management involvement with the petition. The next day Mr. Allan made an appointment to see the company President, Mr. Davis. He testified that his reasons for going to see Mr. Davis at that point were to see if Mr. Davis was aware of the union activity, to ascertain the progress of a new lunchroom which had been promised by Mr. Davis earlier, and to discuss the problems which employees were having in communicating with management. Asked on cross-examination why he was interested in knowing whether Mr. Davis was aware of the union activity, Mr. Allan responded by saying that Mr. Davis has an "open-door"

policy. Mr. Allan added that this was not the first time he had taken advantage of Mr. Davis' "open-door" policy to go and talk to him, but that not enough employees were taking advantage of it. Apart from the question of the "open-door" policy, however, counsel again asked Mr. Allan why he would be interested in knowing whether or not Mr. Davis was aware of the union activity. Mr. Allan responded then that Mr. Davis had just recently arrived some 9 months ago from England. Counsel pointed out to Mr. Allan that England has trade unions as well, and Mr. Allan then indicated that he simply wanted to know what Mr. Davis' personal feelings on the subject were. He went on to testify that Mr. Davis responded that it did not matter to him either way that he could live with or without a trade union in the place. Counsel then asked Mr. Allan why, having gotten the response that he was seeking, he was not swayed by Mr. Davis' view. Mr. Allan responded that he had already made up his own mind that a union was not needed at Zymaize, and that he had only inquired about Mr. Davis' feelings because he was curious. Apart from the difficulty the Board has with the credibility of this portion of Mr. Allan's testimony standing alone, his account of Mr. Davis' response to him is also in marked contrast to the concerns Mr. Davis expressed to other employees that if the union came in, "the company would go under". At the very least, these comments of Mr. Davis further undermine the credibility before the Board of the petitioners' key organizer and witness, Mr. Allan. And beyond this, Mr. Allan agreed with counsel that the fact that he had had this meeting discussing the union in Mr. Davis' office that evening became common knowledge amongst the employees in the plant. As Mr. Allan stated: "I didn't keep that a secret".

The next evening after work Mr. Allan had a discussion about the union with his Co-ordinator, Mr. Paul Field. In the course of that discussion, Mr. Allan indicated that he had made up his mind to oppose the union. Mr. Field responded that Mr. Allan should get a lawyer, and gave him the name of a Mr. Nash, whom Mr. Allan understood to be the company's lawyer. Mr. Field told Mr. Allan to 'just call Mr. Nash", and Mr. Allan did so. Mr. Nash indicated to Mr. Allan that he did not do that kind of work, and referred Mr. Allan to his present counsel, Mr. Abbass. Once again, Mr. Allan did not keep this encounter with management to himself, and other petitioners who testified before the Board indicated that they learned from Mr. Allan that their present lawyer had been referred through Mr. Field. Consistent with this, one of the union witnesses testified that the rumour in the plant was that the petitioners had gotten a lawyer which the company had either supplied or referred them to. More specifically, the witness testified, the rumour was that the company had referred them to a lawyer, and from that employees inferred that since no one in the petitioners' group could afford a lawyer, the company must be paying for him.
After the Notice of Application went up at the plant on December 1st, Mr. Allan obtained wording for his petition from Mr. Abbass, and had his girlfriend type it up. Mr. Allan began to "talk up" the idea of a petition at work even before the Notice went up, but did not begin the circulation of his petition in earnest until December 6th. With the benefit of counsel's advice, Mr. Allan and his principal assistants, Mr. Northey and Mr. Johnston, arranged to have employees who were interested in signing the petition do so away from the company's premises. In some cases employees were telephoned and then visited at their homes, but most employees signed by showing up at designated times and places which were located within a few minutes of the plant.
There was, as noted, some degree of confusion over the status of the "Team Leaders" in this case. Until the applicant trade union wrote to the Board seeking to amend its bargaining-unit description, it was the position of both the applicant and the respondent employer that Team Leaders were not eligible for inclusion in the bargaining unit. The union's requested alteration in the unit was not posted at the plant until December 8th, by which point the majority of the signatures on the petition had already been obtained. Counsel for the petitioners argues that the status of the Team Leaders, being at the periphery of management and the bargaining unit, would, at the very least, always have been a matter of ambiguity in minds of employees, and that there may even have been rumours in the plant prior to December 8th (as there appeared to be with everything else) that the applicant had changed its position. In terms of this "ambiguity", however, it is interesting to note that Mr. Allan himself initially testified that he never "talked up" his petition in the control room in front of Mr. McIntosh, his Team Leader. Mr. Allan agreed, in fact, that he "ensured" that Mr. McIntosh was not around at the time. It was only on being confronted with the suggestion that he had on a number of occasions engaged in general discussions with other employees about the petition in the presence of Mr. McIntosh that Mr. Allan volunteered that he did not consider Mr. McIntosh a member of management. Asked then to explain his earlier concern over discussing the petition in front of Mr. McIntosh in the control room, Mr. Allan's only response was: "He's hardly ever in it".
The Board must also consider the role played in this matter by Mr. Paul Watterworth. Mr. Watterworth is a member of the bargaining unit who, we are told, acts as relief Lead Hand on the occasions when the regular Lead Hand is away on vacation. On at least two occasions (though not necessarily when acting as Lead Hand) Mr. Watterworth approached other employees in the bargaining unit and harangued them for thinking about bringing the union in. Mr. Watterworth stated to them, amongst other things, that he had gone to see Mr. Garde, the Refinery Manager, Mr. Moss, the Plant Manager, and Mr. Davis, in order to discuss the question of the union. As Mr. Watterworth, from the evidence, appears to have become an active and prominent force behind the petition, these disclosures would arguably create in employees' minds a further direct link between management and the supporters of the petition. Of clearer significance, however, was a discussion which took place at the Hideaway Tavern on the evening of December 7th. The Hideaway was one of the designated spots used to obtain signatures on the petition. It is essentially divided into two areas, a bar and a dining area. Mr. Allan was there soliciting signatures that night, primarily on the dining side. On the other side at a table were Mr. Watterworth, Mr. McIntosh (Mr. Allan's Team Leader), the petitioner Dale Northey, and two employee supporters of the union. In that conversation the union supporters complained to Mr. Watterworth about having gone to Mr. Moss and Mr. Davis about the union and having "named names". Mr. Watterworth in response conceded that specific names were discussed, but he said that he did not tell management anything that he did that they did not already know. Later in that conversation Mr. McIntosh stated to the two union supporters: "A year from now the union will be gone, and so probably will half of you guys". Mr. Northey in his evidence conceded that at the time of this conversation, it was his belief that Mr. McIntosh was "excluded" from the bargaining unit.
The union expressed its concern as well over the extent to which the lower levels of management supervision would have been perceived by employees as playing

a role in the coordination of the off-premises petitioning activity. Mr. Allan admitted, for example, that the subject of the petition was freely discussed in front of Mr. McIntosh in the plant office which is above the control room. The plant office is the area set aside for the use of the Co-ordinators, company consultants and secretarial staff, as well as the Team Leaders, who share a desk there. Another employee, Mr. Bates, had requested permission from his co-ordinator on December 9th to leave the plant during his lunch hour, for the purpose (which he did not state) of attending at the time and place designated for the signing of the petition. Upon Mr. Bates' return, he went to the plant office to advise Mr. Fleming, his Co-ordinator, that he was back, and found Mr. Fleming sitting with Mr. Watterworth and Mr. McIntosh. Without Mr. Bates saying anything, Mr. McIntosh volunteered that he had meant to get a hold of the petitioners to wait for Mr. Bates so that he could sign the petition. The union also points to the fact that Mr. Johnston, one of the other circulators of the petition, asked permission of his Lead Hand to leave the plant 15 minutes early on December 1st. He volunteered to his Lead Hand that his purpose for wishing to leave was to collect signatures on the petition at the plaza. Permission was granted without further discussion, although Mr. Johnston points out that such an occurrence was to him no different than the number of occasions on which he has asked for and received permission to leave early in order to attend a baseball game. The only concern, Mr. Johnston points out, is whether his work area is adequately covered. Mr. Johnston adds that it was, from a work point of view, more important that he be at the plaza early to relieve Mr. Northey, as the arrangement for that shift is that Mr. Northey arrives a few minutes ahead of the normal starting time in order to liaise directly with the outgoing operator. On this latter point, however, the Board notes that the evidence of Mr. Northey was that he in fact reported to work five minutes late that evening, and nothing was said to him.

The relevance of petitions such as we now have before us arises from the Board's discretion under the latter part of section 7(2) of the Labour Relations Act. That section provides:

If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

The Board has interpreted its own discretion in a way which will permit employees who have signed union cards an opportunity to register with the Board an apparent "change of mind", through "petitions" or statements in opposition to the union's application. If, through this mechanism, a sufficient number of employees' true wishes are cast in doubt, the Board normally will seek the confirmatory evidence of a representation vote, no matter what strength of support is demonstrated for the union by its card count. But to refuse to fully accept the union's cards at face value, the Board must be presented with evidence having at least a reasonable measure of probative value.

There are certain facts of the work place to which a labour relations tribunal must turn its mind when confronted with an issue such as the present, and these are summarized in general terms in the Board's recent decision in Baltimore Aircoil Interamerican [1982] OLRB Rep. Oct. 1387, particularly at paragraphs 40 and 41:
... Before reviewing each of these issues it is useful to understand the general legal and policy background against which petitions are considered by this Board. There is usually and naturally an identity of interest between an employer and those of his employees interested in opposing an applicant trade union. In this context the circulation of a statement of desire involves petitioners approaching their fellow employees to solicit support. Understandably, an employee so approached may worry or feel anxious that his refusal to sign such a petition will become known to his employer given this natural interest employers have in employees opposing the trade union. But, this identity in interest between employer and opposing employees, standing alone, has never been viewed by this Board as undermining the reliability of signatures placed on a circulated petition. If this were not so, a petition could never be found to be voluntary. On the other hand, this is not to say that a similarity in interest between employer and petitioners is irrelevant and, indeed it is the reason why this Board subjects the origination and circulation of a statement of desire in opposition to an application for certification to considerable scrutiny. There is an onus on those employees who present the documentary evidence to the Board to demonstrate that the signatures contained therein constitute a voluntary expression of the wishes of those employees who on a recent and earlier occasion joined the applicant trade union. It is in this context that the Board, in the often cited Pigott Motors (1961) Ltd. case, 63 CLLC ¶16,264, made the following observation:

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 vigilant 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 as 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 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 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.

Actions by either the employees opposing the trade union or the employer can adversely affect the reliability of a statement of desire. Direct and open support by an employer will obviously suggest a relationship between the employer and the petitioners that would reasonably cause anxiety in the minds of employees approached by the petitioners. Therefore, in such circumstances, it would be just as reasonable to infer that the employees signed the document to conceal their support for the trade union as it would be to conclude that they signed voluntarily. Where this is the case, the Board usually takes the view that the petitioners have not satisfied the onus on them and the statement of desire is dismissed as an unreliable indicator of the true wishes of the employees. Similarly, actions by the petitioners without support of the employer can equally destroy the reliability of a statement of desire. Circulating a document in the presence of foremen or representations clearly indicating support by the employer can produce the same anxiety in the minds of employees who signatures are solicited and thus prompt the Board to respond in a similar fashion.
The next issue is Mr. Leyte's admission that he may have told up to ten employees that his lawyer's name had been suggested by the employer. We are of the view that this admission is fatal. To advise other employees that the lawyer representing the petitioners was suggested by the employer could reasonably create a direct link between the petitioners and the employer in the minds of employees approached by the petitioner.
In addition in this case we have the aggressive involvement against the petition of Mr. McIntosh, whose relationship to management was at the very least ambiguous in employees' minds, as well as the apparent tolerances granted to individuals arriving late or leaving early as a result of petitioning activity. This latter point is of only limited significance, in light of the fact that these employees are salaried and there appears to be some history of flexibility in work hours. But one has to be struck by the openness with which the petitioning activity was being discussed with various members of management, which, together with these tolerances, would reasonably give the average employee the impression that management was intimately caught up in the co-ordination of the petition.
But the real problem remains the puzzling conduct of the petition's main proponent, Mr. Allan himself; and Mr. Allan's lack of credibility before the Board does nothing to alleviate the problem. We find that Mr. Allan, for whatever motive, openly established in the minds of employees a link between the petition and company management, and that employees in the circumstances would reasonably fear that management would ultimately come to know who had or had not agreed to sign the petition. The fear, in other words, would be that management would be made aware of particular employees' declarations of sympathy, and this fear would have been reinforced by Mr. Watterworth's claim that management was already aware of the names of employees who supported the union. In all of the circumstances, the Board finds it impossible to place any weight on the fact that employees placed their signatures on Mr. Allan's petition, and the petition will accordingly not affect the applicant's position. Mr. Abbass argued for the petitioners, in the alternative, that even if the Board were to reject the petition, it ought to consider exercising its discretion to order a vote if the Board found that the petition had to be rejected for reasons beyond the petitioners' control. Whatever may be the merits (or basis) of such an argument, this case clearly would not fit into that category.
Based on all of the material before it, the Board is satisfied 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 December 9, 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 ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.

DECISION OF J. W. MURRAY, BOARD MEMBER;

I disagree with the majority and would have ordered a vote be taken.
The Board provides fairly wide latitude for employees to express their wishes. In this case I do not find any coercion, or management involvement in the taking of the petition, particularly when one looks at the totality of any such activity.
The beginning of the petition activity appears to have started November 29th, a few days before the posting of the "green sheet" or notice of the union's application for certification. Since it is a relatively small plant, the rumours of union organizing activity, and even petition activity, seems to have been well known. There was no evidence presented which indicated that the company had initiated or indeed taken part, for or against, in either activity. The posting of the "green sheet" was the first notice that many employees had of the status of the union's organizing campaign. Those employees interested in a petition thus had a deadline set for them and proceeded to meet it. I do not sense any sudden change of heart.
Any alleged management involvement with the petition was of no significance in the overall picture and indeed amounted to no more than civil answers to questions asked by one or two employees. Short of refusing to answer, there was no contact at all by management in the petition.
I would find the petition valid and would have ordered a vote, since it represents an expression of real doubt by a significant group of employees, which would be clarified by a vote.