Wilfred Hector Picardo & Others v. The United Steel Workers of America, 1983 CanLII 846

[1983] OLRB Rep. November 1779

1320-83-R Wilfred Hector Picardo & Others, Applicant, v. The United Steel Workers of America, Respondent, v. Almag Aluminum Ltd., Intervener

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. Kennedy and J. A. Ronson

APPEARANCES: Wilfred Hector Picardo, Lansford Guthrie and Daniel Harding for the applicant; Naomi Duguid and Doug Hart for the respondent; Michael Gordon and E. M. Peacock for the intervener.

DECISION OF THE BOARD; November 3, 1983

1. This is an application made under section 57 of the Labour Relations Act for a declaration terminating the bargaining rights of the respondent United Steel Workers of America ("the union").

2. The union did not file a reply to the application. The application affects all employees of the employer at its Brampton, Ontario, plant save and except forepersons, persons above the rank of foreperson, office and sales staff, employees regularly employed for not more than 24 hours per week and students employed during the school vacation period. These employees are bound by a collective agreement between the union and Almag Aluminum Limited ("the employer") which expires October 12th, 1983. The petition filed with the application bears the date of September 13, 1983 and is set up in the following form:

710 ALL EMPLOYEES:

THIS PETITION REGARDING TERMINATION OF BARGAINING RIGHTS BETWEEN THE UNITED STEEL WORKERS OF AMERICA, 350 RUTHERFORD ROAD SOUTH, BRAMPTON, ONTARIO L6W 3P6 AND ALMAG ALUMINUM LIMITED, 22 FINLEY ROAD, BRAMPTON, ONTARIO, L6T LA9, IS STRICTLY VOLUNTARY AND MUST BE SIGNED BY EVERY EMPLOYEE WHETHER IN FAVOUR OF OR NOT, IN THE APPROPRIATE COLUMN BELOW.

SEE ATTACHED FORM 17, APPLICATION FOR DECLARATION TERMINATING BARGAINING RIGHTS.

IN FAVOUR OF NOT IN FAVOUR OF TERMINATION OF TERMINATION OF BARGAINING RIGHTS BARGAINING RIGHTS

A line drawn vertically between the two column headings divides the balance of the page under the heading into two columns. There are a series of horizontal lines across both columns to accommodate employees' signatures. The signatures of all nine employees who were in the bargaining unit at the time the application appeared in the left hand column. Union counsel advised the Board at the outset of the hearing that she would be arguing that the form of the petition was defective and, as a result of that defect, the petition did not express the voluntary wishes of the employees who signed it. Thus, within the usual issue in an application made under section 57 of the Act of whether not less than forty-five per cent of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the trade union, the application raises the issue of whether the form of the petition satisfies the requirements of section 57(3) of the Act and the Board's Rules of Practice relating thereto.

3. The Board heard the evidence of the applicant Wilfred Picardo and two other bargaining unit employees, Daniel Harding and Keith Guthrie, called by Picardo to testify in support of the application. No witnesses were called by the other two parties. Picardo testified that:

(1) His wife typed the petition and the Form 17 "Application for a Declaration Terminating Bargaining Rights" pursuant to his instructions.

(2) His wife called the Board on his behalf to obtain copies of the blank Form 17 and information with respect to the circulation of a petition and the making of an application for termination of bargaining rights.

(3) He had been in possession of a copy of the Board's publication "A Guide to the Ontario Labour Relations Act" ("the Guide") since the trade union was certified approximately one year ago. From his reading of the Guide, he knew he had to apply for termination of bargaining rights during the last two months of operation of the collective agreement. He also concluded from his reading that the petition would have to be structured in such a way as to give employees a chance to sign whether they were in favour of or against terminating the union's bargaining rights and in such a manner as to indicate their preference. That is why he provided the two columns headed as they are on the petition. He also concluded that the petition had to be accompanied by the completed Form 17 when employees were asked to sign the petition.

(4) He solicited all of the signatures on the petition on the same day. The first five signatures were obtained in the morning prior to the start of the day shift, the only shift operating at the time, and the remaining four were obtained after the end of the shift. All signatures were obtained outside of the plant in the employee's parking lot or the driveway of the parking lot.

(5) He asked each employee to read the petition and then to read the Form 17 so as to inform themselves of what the petition was about. Even so, he told them that he was seeking to apply to have the union's bargaining rights terminated and that they were free to be for or against the termination of the union's bargaining rights.

(6) He said that the four persons who signed the petition after him that morning were all present when he signed it.

(7) He did not discuss with the employees his plans to make an application for the termination of bargaining rights at any time prior to when he approached them to sign the petition, although he testified that "... it was always around the plant that the employees were against the union".

(8) He did not discuss at anytime with management the application, petition or his intention to make the application. Nor did he discuss what wage rates would be paid if the union was to be decertified.

(9) He has not been told by management that it will discuss wages or working conditions with employees if the union becomes certified, but he presumed that each employee would be free to deal directly with management.

4. Daniel Harding testified that he was amongst the first five employees to sign the petition but was not present when Picardo signed it. He read the petition and the Form 17 before signing the petition and knew exactly what he was signing. He told the Board that, from reading the heading on the petition, he knew to sign in the left hand column if he was in favour of terminating the union's bargaining rights and in the right hand column if he was against those bargaining rights being terminated. Harding is a labourer in the bargaining unit and has been employed for approximately seven months.

5. Keith Guthrie is the employer's shipper and receiver and has been an employee for approximately 16 years. He also serves as lead hand in the shop. There are no allegations that he exercises managerial function or that he is reasonably perceived by the other employees as exercising such functions, or that he has any special kind of relationship with the employer which would cause the employees to be concerned that their decision to sign or not to sign the petition would be communicated to the employer. Mr. Guthrie told the Board that he also was amongst the first five to sign the petition and that he was present when Picardo and two of the other five employees signed it, one of whom was Harding. He described the wall of the shop facing onto the employees parking lot as having no windows looking on to the lot. He also told the Board that supervisors used a parking lot on the opposite side of the premises.

6. This application was made under subsection 2 of section 57 of the Act and, therefore, is subject to the provisions of the subsection 3 of the Act. It reads as

(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 to bargain on their behalf be terminated.

(emphasis added)

The application is also governed by section 73 of the Board's Rules of Procedure. That section provides as follows:

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 to 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)

7. These sections of the Act and the Board's Rules of Procedure operate to place the responsibility on the applicant to demonstrate to the Board by testimony of witnesses' personal knowledge and observation as to the circumstances concerning the origination of the petition and the manner in which each signature on it was obtained that "... not less than forty-five per cent of employees in the bargaining unit have voluntarily signified in writing ..." that they no longer wish to be represented by the trade union. The Board has held in its many decisions involving petitions, whether with respect to applications for certification or for the termination of bargaining rights as this application is, that, for it to be satisfied that a petition expresses the "voluntary" wishes of the employees who signed it, the petition must be free of employer support or influence, whether open or subtle and covert, and free of any conduct or representations by petitioners which would clearly signal employer support. It is a safe assumption that petitions signed as a result of threats, coercion or intimidation by petitioners would also not be voluntary.

8. Union counsel argues that the petition is fundamentally defective because the wording "... must be signed by every employee whether in favour or not, in the appropriate column below." makes it compulsory for employees to sign. Furthermore, counsel argues, Picardo admitted that the petition had to be signed by every one whether they were in favour of the application or not. Therefore, since section 57(3) of the Act requires the voluntary signification in writing of employees' support for the application and the petition on its face clearly is not voluntary, it falls outside of the requirements of section 57(3). At best, counsel contends, the words "... whether in favour or not, in the appropriate column below." are unambiguous. Board Member Ronson drew to counsel's attention the unreported decision of a majority of the board in K-Mart Canada Limited, [1983] OLRB Rep. April 561, wherein the Board accepted a petition document which, when signed by employees, was devoid of any statement as to the purpose to be served by their signatures. The evidence in that case established that each employee who signed the blank sheet of paper was shown a copy of the Board's Form 17, also blank, prior to signing the sheet of paper. Counsel's response was that, in the instant case, it would have been better if Picardo had used a blank sheet of paper along with the completed Form 17 because that form clearly is an Application for Termination of Bargaining Rights and there would be none of the ambiguity caused by the wording which counsel claims offends the requirements of section 57(3).

9. Alternatively, if the Board accepts the petition document, counsel contends that Picardo has not met the basic onus imposed upon him by section 57(3) of the Act and section 73 of the Board's Rules of Procedure because he has failed to satisfy the requirements of section 73 with respect to the manner in which each signature on the petition was obtained. That result is the consequence of internal inconsistencies in his evidence, contradictions between his evidence and that of Harding and Guthrie with respect to the circumstances surrounding the first five signatures on the petition and his demeanor as a witness, all of which makes his evidence unreliable to such an extent that the Board cannot be satisfied either with his evidence about all of the circumstances under which the petition was signed or his denials of any employer involvement or support for the application and his frequent oral assertions that the employees signed the petition voluntarily.

10. There is no direct evidence of management support for or involvement with the petition and none from which such support or involvement could be inferred. It is not contended that Picardo conducted himself in a manner which could constitute threatening, intimidating or coercing.

11. With respect to union counsel's argument made in the alternative that Picardo failed to satisfy the basic onus of section 57(3) of the Act that employees' wishes be voluntary and in writing, the Board has examined its record of the testimony of all three witnesses, counsel's representations thereon and, while there are some discrepancies in the details of the witnesses' testimony, these are not of a type which, when seen in the context in all of the evidence and having due regard for the demeanor of all three witnesses, would cause the Board to refuse to rely on Picardo's evidence should the Board find the form of the petition acceptable.

12. That leaves the Board with the more difficult issue of whether the petition is, as counsel for the union contends, so fundamentally defective as not to constitute a voluntary, written signification of employees' wishes. With respect to the wording chosen by Picardo, it might present an insurmountable problem if the petition had been worded to end after the phrase ..... whether in favour or not," followed only by the blank space for the affixing of signatures. But that is not its construction. It directs employees to sign "... IN THE APPROPRIATE COLUMN BELOW."; the right hand column if "IN FAVOUR OF TERMINATION OF BARGAINING RIGHTS" and the left hand one if "NOT IN FAVOUR OF TERMINATION OF BARGAINING RIGHTS". Furthermore, inserted between the main part of the petition headnote and the two column headings is the instruction "SEE ATTACHED FORM 17, APPLICATION FOR DECLARATION TERMINATING BARGAINING RIGHTS.". The evidence before the Board is that Picardo told each employee to read the petition and the Form 17 before deciding if he wanted to sign in favour of the application or against it. The evidence of Harding and Guthrie is that they read both documents and it was clear to them that they were to sign in the left hand column if they wanted the union out and in the right hand one if they wanted to keep it.

13. While the phrase "MUST BE SIGNED BY EVERY EMPLOYEE WHETHER IN FAVOUR OR NOT," introduces a potential ambiguity, the form of the petition when viewed in its entirety is not ambiguous in the sense that any employee signing it would be uncertain of the choice which he was being asked to make. Putting it another way, any reasonable employee would have to know that he is being asked to signify, by signing in the left hand column, that he is in favour of the application, or by signing in the right hand column, he is not in favour of the application. The instruction referring persons to the completed Application for Declaration Terminating Bargaining Rights attached to the petition makes the purpose of the petition abundantly clear. The main risk that Picardo and his supporters are taking with this form of petition would be in circumstances where the Board were to be confronted with evidence of employees signing in haste for any reason and having confused the "IN FAVOUR" and "NOT IN FAVOUR" as meaning in favour or not in favour of the trade union, which, if it occurred, would give the employees' signatures the opposite meaning to that intended by the instructions.

14. With respect to the phrase in the petition headnote that the petition "... MUST BE SIGNED BY EVERY EMPLOYEE WHETHER IN FAVOUR OR NOT," constituting compulsion and, therefore, rendering the document not voluntary, the Board does not agree for several reasons. It is correct that Picardo agreed with union counsel that each employee had to sign the petition, but it was his evidence also that he had interpreted the instructions in the Guide to mean that employees had to be given the chance to say whether they were for or against the termination of the union's bargaining rights. He told the Board that he chose this petition format in order to give them that choice. In these circumstances, there is no intent to compel and no evidence that any employee signed the petition because he understood he was compelled to sign. The choice confronting any employee approached by Picardo to sign the petition was no different than that facing an employee who is asked to sign the more conventional style of petition which simply states that it is in support of an application for termination of bargaining rights or, in the case of an application for certification, is opposed to being represented by the trade union applicant. That choice is to sign or not to sign. The fact that the petition herein says that it must be signed by every employee does not materially alter the choice. It is Picardo who is saying it must be signed, not the employer. Picardo is not in the position to influence the employment status of employees and there is no evidence to establish that it would be reasonable for employees to see him in that light. Therefore, there would be no adverse consequences for an employee who refuses to sign in either column of the petition.

15. Of greater importance however, is the fact that the Board has consistently interpreted the word "voluntary" in section 57(3) to mean that the petition is free of actual or perceived employer influence and that employees who sign a petition are not motivated by a perceived threat to their job security or by concern that failure to sign would be communicated to the employer or could result in reprisals. The Board has given that same meaning to the word voluntary when it is used with reference to the Board's long-established practice of accepting voluntary petitions when exercising its discretion under the Act to order a representation vote in an application for certification (see La Food Division of Lumsden Brothers Limited, [1983] OLRB May 676). When one bargaining unit employee with no connection to management, real or reasonably perceived, indicates to another bargaining unit employee that he must sign a petition, absent evidence of threats, coercion or intimidation, it does not make his act of signing the petition involuntary.

16. Having regard for the documentary and viva voce evidence before it, the Board is satisfied that the petition filed in support of this application expresses the voluntary wishes of the employees who signed it. The Board is further satisfied that not less than forty-five per cent of the employees of Almag Aluminum Limited 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 United Steel Workers of America on September 26th, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Act to be the time for the purpose of ascertaining the number of persons who voluntarily signified in writing that they no longer wish to be represented by United Steel Workers of America under section 57(3) of the Act.

17. The Board directs, therefore, that a representation vote be taken of the employees of Almag Aluminum Limited. Those employees eligible to vote are all employees of the employer at its Brampton, Ontario, plant save and except forepersons, persons above the rank of foreperson, office and sales staff, employees regularly employed for not more than 24 hours per week 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.

18. Voters will be asked to indicate whether they wish to be represented by the United Steel Workers of America in their employment relations with Almag Aluminum Limited.

19. The matter is referred to the Registrar.