Canadian Paperworkers Union v. Cooper Corrugated Containers Ltd., 1983 CanLII 847

Canadian Paperworkers Union v. Cooper Corrugated Containers Ltd.

[1983] OLRB Rep. November 1786

1456-83-R Canadian Paperworkers Union, Applicant, v. Cooper Corrugated Containers Ltd., Respondent, v. Group of Employees, Objectors

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members W. G. Donnelly and B. K. Lee.

APPEARANCES: M. A. Church and Ray Bowman for the applicant; Howard Levitt and Geordie Brown for the respondent; no one for the objectors.

DECISION OF THE BOARD; November 29, 1983

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. Based upon the agreement of the parties, the Board finds the following to be the bargaining unit appropriate for collective bargaining:

All employees of the respondent at Rexdale, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff.

4. In accordance with the Board's Rules of Procedure respecting applications for certification, the respondent employer has filed a list of employees showing 16 employees in the bargaining unit, together with specimen signatures for employees on that list. Having regard to the agreement of the respondent to three of the four challenges made to such list by the applicant, there are 13 employees in the unit. The parties remain in dispute as to the unit. The membership cards are signed by the employees. The receipts are countersigned and indicate that a paymTherefore, we hereby appoint a Labour Relations Officer to inquire into and report to the Board on the duties and responsibilities of Mr. Dayman.

5. In support of its application for certification, the applicant union filed documentary evidence of membership in the form of cards, which consist of combination applications of membership and receipts. The union filed 9 cards, all of which coincide with the names of employees in the bargaining unit. The membership cards are signed by the employees. The receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date for this application. The money was collected by more than one person and the membership evidence is supported by a duly completed Form 9 statutory declaration concerning the membership documents.

6. An undated timely statement of desire by 8 employees indicating opposition to the application was filed, four names of which coincide with the names of those who signed membership cards. The Board finds this statement to be relevant to these proceedings because if it is proven to be voluntary, it would raise sufficient doubt concerning the continued support for certification of the applicant, by a sufficient number of employees who also signed membership cards, that the Board would generally exercise its discretion under section 7(2). of the Act to direct that a representation vote be taken despite the fact that more than 55 % of the employees in the bargaining unit were members of the applicant at the relevant time.

7. The statement of desire (hereinafter "petition") complies in form and substance with Rule 48 of the Board's Rules of Procedure. In accordance with its usual practice, the Board undertook the inquiry contemplated by Rule 48(5) and heard evidence concerning the origination of the petition and the manner in which each signature thereon was obtained.

8. The Board heard evidence from Peter Portelli, a macme operator, who testified he was the sole originator and circulator of the petition. Mr. Portelli was asked why and how he conceived the idea to write and circulate the petition. He gave several reasons, namely:

(1) that his wife had found out from a piece of paper in his wallet that he had signed a union card and yelled at him;

(2) that he had been a member of unions (including the applicant) in other work locations and had been dissatisfied with them; and

(3) that his brother held similar anti-union views and lectured him on the subject.

He had signed a membership card on September 26, 1983 notwithstanding his pre-existing feelings in opposition to unions. He testified several times, in answer to the question as to why he had signed a card if he had felt this way, that he was "confused and upset" by family matters at the time he signed the card. He made no claim that the confusion was due to group pressure or anything done or said by the applicant. His wife discovered he had signed a card by reading the piece of paper in his wallet on September 26, 1983. The lecture from his brother occurred shortly thereafter. He indicated that he realized he had made a "mistake" the same day he signed the union membership card so his brother's lecture appears to have had a marginal impact on his decision to take up the petition. Under cross-examination Mr. Portelli admitted that his wife had a very limited ability to read English but nevertheless could read the word "union " on the piece of paper. Apparently, it was from this she was able to conclude Mr. Portelli had joined a union. Mr. Portelli was clear in his testimony that her yelling was caused by her reading this word as opposed to any conversations between them. Mr. Portelli was asked to confirm whether the piece of paper was a detachable receipt from the applicant (Exhibit "IB") but he could not remember. Mr. Portelli did nothing toward extricating himself from the applicant until the day after Form 6 (Notice to Employees of Application for Certification) was posted on Wednesday, October 5, 1983. On Thursday, October 6, 1983, he claims he telephoned this Board and was advised to read the papers posted in the factory. He was also advised to phone back after he had done so. Mr. Portelli initially testified that he read the papers and phoned back as instructed mentioning nothing of any difficulties he encountered or assistance he needed to follow theseinstructions. Under cross-examination it was clear to the Board that Mr. Portelli's ability to read the English language is limited. Mr. Portelli claimed that it was because of such limitations that he decided to copy out Form 6 so that a friend, Tony Vaselo, (hereinafter "Tony") could explain it to him. Mr. Portelli was apparently able to copy Form 6 sometime during Thursday, October 6, 1983. He testified that he was able to do so because of the proximity of the machine he was working on and the posted notice. It appears he did the copying during his working hours. After he had done this and showed it to Tony, his friend advised him as to what the form said. Mr. Portelli phoned the Board sometime on Friday and passed the phone over to Tony. Tony wrote down for Mr. Portelli what information was necessary, i.e., name of company, names of employees, witness and name of the union. Notwithstanding Tony having written this information for Mr. Portelli, he helped Mr. Portelli compose the petition on Friday night. Tony wrote out the heading in English and Mr. Portelli copied it. The heading on the petition is:

WE THE FOLLOWING EMPLOYES [sic] OF COOPER CORRU­GATED CONTAINERS AT

439, ATWELL DRIVE

REXDALE ONT M9W 5C3

DO NOT WISH TO JOIN OR BE REPRESENTED BY THE

CANADIAN PAPERWORKERS UNION

When asked to read the heading to the Board, Mr. Portelli could not pronounce "represented" and upon questioning by counsel for the applicant, admitted that he did not have "any idea what the heading means really" and specifically he did not know what "represented" means. He said he wrote it out because of his friend's advice.

9. Pausing at this juncture and assessing the evidence to do with the origination of the petition, the petitioner failed to give a credible explanation for his decision to create the petition. He had signed the membership card notwithstanding longstanding feelings that previously he had not been served well by the applicant and other unions. A claim that he was "confused and upset" by family matters was the only answer repeatedly given for signing the membership card. His realization that he had made a mistake was precipitated by his wife reading and reacting to one word on a piece of paper. Even though he realized his mistake on September 26, 1983, he waited until October 6th to act on it. The action came after Form 6 was posted. There is no evidence he spoke with any fellow employees about his change of heart between September 26th and October 7th to determine whether anyone else had a similar change. He simply "thought" about it.

10. The applicant led evidence to show that Mr. Portelli had been one of a group of employees who had approached the applicant regarding membership. Stephen Lewis, an employee at the respondent, testified that he had spoken to Mr. Portelli about the applicant prior to the meeting held with the applicant where cards were signed. Mr. Lewis assessed that Mr. Portelli and another employee, S. Sultana, were "for the union" so he called the applicant after waiting 2 weeks to be sure their support was real. He claimed to have been advised by Mr. Portelli that the reason for his wanting the applicant to be "in" was because he was unhappy he had to pay for all his fringe benefits. Mr. Portelli denied that he spoke to Mr. Lewis or vice versa before the meeting when Mr. Portelli signed the membership card and denied that he had expressed any dissatisfaction with the benefit arrangements of the respondent. Another employee, Gus Bilokrely, testified that he perceived Mr. Portelli as "one of the main people who brought the union in". Both Mr. Lewis and Mr. Bilokrely assessed Mr. Portelli's participation in the union meeting when cards were signed up as being supportive of the applicant becoming the representative of the employees.

11. The explanation Mr. Portelli gave of his circulation of the petition was not any more convincing. We were left wondering why the three persons who had signed cards leant their support to Mr. Portelli's petition. Even the circumstances of signing by those who had never signed cards struck us as peculiar. Finally, the explanation as to how the first employee, who did not sign the petition, was approached left us doubting the accuracy of Mr. Portelli's description of when the petition was written up.

12. Starting with the last aspect first, Mr. Portelli testified he raised the petition with the first employee solicited while that employee was being driven home from work by Mr. Portelli on Friday, October 7, 1983. Mr. Portelli claimed he had the petition, written up, in his pocket but did not show it to this employee because he said he wanted to think about it prior to signing. Mr. Portelli testified that his shift ends at 3:00 P.M. In view of his testimony that Tony helped him compose the petition Friday evening, this conversation would be unlikely and it would have been impossible for Mr. Portelli to have the petition in his pocket.

13. Apparently Mr. Portelli was successful in all his subsequent overtures to various employees. With P2 he simply asked for her telephone number, with no explanation as to why he wanted it, and arranged to meet her at her home the next day, Saturday, October 8. He said he asked for her telephone number after work as she stood waiting for her husband to pick her up. In the case of P3 and P4, Mr. Portelli claims that he already had their phone numbers. He telephoned both on Saturday, October 8, and arranged that he meet with each in their respective homes the same day. He did not explain to either why he wanted to visit them at their homes. In the case of P4 he had never been to his home prior to this. P2, 3 and 4 were all asked to sign Mr. Portelli's petition in the same fashion. Mr. Portelli merely explained that while he (or they, as the case may be) had signed for the union before, he (or they) had made a mistake and had to go against the union. None of the three required any more explanation of or discussion about how it was a mistake to join the union. All three signed after Mr. Portelli's brief explanation. P5 signed on Tuesday, October 11, at a restaurant at Highway 27 and Belfield Road. Mr. Portelli claims that he had his phone number already because P5 had sold him some tires previously. Mr. Portelli phoned P5 on October 10th, Thanksgiving Monday, and arranged that P5 meet him sometime after 6:30 a.m. on Tuesday, the 11th at the restaurant. Mr. Portelli gave him no explanation as to why he wanted to meet with P5 and P5 did not ask for any. Mr. Portelli acknowledged he had never met with P5 outside of work before. Initially, under questioning by the Board, Mr. Portelli claimed that P5 was on vacation on Tuesday, October 11th, but when under cross-examination he was asked why someone who was on vacation would agree to a 6.30 a. m. meeting with no explanation, Mr. Portelli changed his story and said that Tuesday was P5's first day back at work after being absent on vacation leave. Mr. Portelli claims he knew that this was his first day back because P5 had told him prior to leaving on his vacation. Mr. Portelli said the same thing to P5 as he said to P2-P4, i.e., that he had signed a union card and now did not want the union. Again there was no elaboration or discussion. P5 signed immediately, after which both Mr. Portelli and P5 went separately to work for their 7 a.m. shift start. P5 was identified in cross-examination as the brother of one of the owners of the respondent. There is no evidence, however, that he was either actually or perceived as "management". While P5 and Mr. Portelli were meeting in the restaurant, three other employees were waiting in Mr. Portelli's car. Two of these three were prior signatories to the petition and the third ,eventually signed it. Mr. Portelli denied he told them what he was stopping in the restaurant for and denied discussing the petition with them as a group. He claimed he took this approach because he generally keeps things to himself. Later, under cross-examination, he claimed Tony told him to get signatures one by one. When asked whether any of the passengers in his car asked him why he was stopping at the restaurant, Mr. Portelli emphatically stated that if anyone asked any questions, they would be no longer passengers in his car.

14. P6 signed under equally hard-to-believe circumstances. P6 on Tuesday, October 11th, after the end of the shift (3:00 p.m.) saw Mr. Portelli outside the factory and asked him for a lift home. She had never asked for a ride home from Mr. Portelli prior to this time. During the 15 minute ride to her home, Mr. Portelli claimed nothing was said about the petition. It was only upon their arrival at their destination that Mr. Portelli asked her whether she had read the papers posted in the factory regarding the union. She said she knew nothing of the union and after Mr. Portelli gave the same brief statement as he had made to P1 – P5, she signed. All of this took only a few minutes. P7 was signed up also on Tuesday, October 1lth, after working hours. After Mr. Portelli got home that day, he phoned P7. He had previously that day at work asked P7 for his telephone number on the pretext that Mr. Portelli might bring some cassettes to his home that evening. Mr. Portelli claimed P7 had previously recorded some cassettes for him. Mr. Portelli, during the telephone conversation, simply asked whether he could immediately meet with P7. P7 agreed without any question. Considering that the ostensible reason for the meeting was for Mr. Portelli to bring cassettes to P7, it struck us as odd that P7 arranged to meet with Mr. Portelli or met with Mr. Portelli outside P7's home. P7 signed the petition in Mr. Portelli's car after Mr. Portelli showed him the petition and said he would like P7 to sign it. Apparently there was no explanation similar to that given to P2 - P6. P7 did not ask any questions and claimed he was happy to sign the paper. Mr. Portelli gave him a pen and he signed. Mr. Portelli had never previously met with P7 outside their working hours or their workplace. P8 signed in Mr. Portelli's car at 6:45a.m. on Wednesday, October 12. Mr. Portelli normally picked P8 up for work after two other employees, but on this morning, Mr. Portelli had arranged to pick him up first so there could be a one-to-one conversation. Mr. Portelli said he simply showed P8 the petition and P8 immediately said he had had a big problem at his previous work locations with the union. P8 therefore immediately signed the petition. The reason why Mr. Portelli did not raise the petition with P8 on Tuesday was because of the two other passengers in the car and P8 may not have wanted them to know whether or not he signed.

15. Wednesday, October 12th, was the terminal date. Mr. Portelli testified that he knew that he had to have the petition at the Board on this date if it was to be counted. He asked no one to sign after P8 because his friend, Tony, had told him 8 was good enough. Mr. Portelli said his friend only told him this on Wednesday, October 12th. Mr. Portelli was asked by us why, if he thought the petition had to be "down here" by October 12th, he thought sending it byregistered mail at around 3:00 p.m. on October 12th would get it "down here" in time. Mr. Portelli revised his previous testimony and stated that he was sending the petition how "they said on the paper" when he sent it by registered mail. Again he claimed his friend, Tony, told him this. Mr. Portelli said he had asked and received permission early on Wednesday to leave work half an hour early due to an illness in the family. This early leaving gave him time to mail the petition on the 12th.

16. Two other aspects of Mr. Portelli's evidence bear highlighting. The first is his recollection of dates. Initially he testified that all of his activities to do with the petition occurred in September. However, upon being shown that he mailed his petition on October 12, 1983, he revised his recollection so that October was the relevant time for the petition. He claimed he had confused the September long weekend with the one in October. In any event, the long weekend formed the focal point of both sets of recollections and we do not find that the confusion in dates undermines Mr. Portelli's testimony. The other aspect we wish to highlight is the participation of Mr. Portelli's friend, Tony, in all steps of the petition's origination and circulation. Mr. Portelli explained that his friend normally lives in New York City and initially claimed he had been visiting Mr. Portelli for a period of 2 weeks commencing either September 11th or 18th. When it was queried how the friend was able to advise him and assist him after Form 6 was posted (October 5th) if the end of his 2-week visit, at the latest, was October 1st, Mr. Portelli revised his recollection of the duration of the friend's visit claiming that his friend in fact visited until October 15, 1983. This revision was materially different from the one regarding the pertinent dates of the petition's origination and circulation. This revision did not constitute a mere change of dates. It entailed a substantive change in the content of Mr. Portelli's evidence regarding the duration of the friend's visit and occurred after Mr. Portelli's confusion of September's long weekend and October's had been straightened out. This revision, along with the others mentioned in previous paragraphs, together with the actual content of Mr. Portelli's testimony, lead us to conclude that Mr. Portelli's explanation was not credible. We were further concerned about the participation of Mr. Portelli's friend, Tony, insofar as Mr. Portelli, in denying any management inspiration of the petition, stated that in fact Tony was the inspiration.

17. The burden of proving on the balance of probabilities that a petition represents a voluntary statement of desire on the part of employees that signed it lies upon the petitioners (see, for example, Omega Neckwear & Apparel Limited, [1981] OLRB Rep. July 925; Leamington Vegetable Growers Co-operative Limited, [1974] OLRB Rep. June 402). The petition must be proved in such a way as to cast doubt on the reliability of the membership cards, which are taken by the Board as constituting the voluntary expression by employees of a desire to be represented by a trade union (see Baltimore Aircoil, [1982] OLRB Rep. Oct. 1387). Generally, the Board will be satisfied that the "change of heart" as expressed by the petition is voluntary if it was free from management influence or support. The short time span between the signing of a membership card and signing a petition against the union dictates that a credible reason for the "change of heart" must be offered. If no credible reason is provided, then the onus of proof is not discharged notwithstanding the absence of any evidence of management influence or support. Section 111(c) of the Act requires the Board, as far as is possible, to protect the identity of both members of the trade union and petitioners. Therefore, in instances of a single petition with multiple signatories, reliance is placed on the evidence of the originator/circulator of the petition to determine the voluntariness of the other signatories' "change of heart's. While the originator/circulator can give direct evidence as to the voluntariness of his own "change of heart", the other signatories' actions must necessarily be based on an assessment of the originator/circulator's evidence as to how the signatures came to be affixed to the petition.

18. In this case we have no evidence of management participation or involvement in the petition. The only arguable piece of evidence in this connection was the familial relationship between P5 and the owners of the respondent and it was properly acknowledged by the applicant that this familial relationship, standing alone, would be insufficient to defeat the petition. However, we are faced with a story which we have not been convinced is credible. The idea for the petition was said to have grown from Mr. Portelli's wife's reaction to seeing a piece of paper with the word "union" on it, the only word Mr. Portelli said she could read, and Mr. Portelli's consequent recollections of how he had really felt about unions, which feelings he had forgotten long enough to allow at least two fellow employees believe he was a willing participant in contacting the applicant with a view to certification. One of these fellow employees believed this for upwards of two weeks prior to contacting the applicant. This forgetfulness only appears to have been terminated by his wife's reaction. We find this hard to credit. We also found it hard to believe that so many of the signatories would have signed the petition with virtually no explanation or discussion in the circumstances described. This is especially puzzling because Mr. Portelli's own evidence indicated that a number of the signatories could not read English and Mr. Portelli himself does not know the meaning of one of the critical words in the heading of the petition. Those that had previously signed cards appeared to need no more by way of explanation or discussion than those who had never signed a membership card. We also note that Mr. Portelli's description of when he first approached an employee regarding the petition is inconsistent with his testimony as to when the petition was prepared (see paragraph 12 above). The Board has indicated on numerous occasions that, in weighing the evidence surrounding a petition to determine whether the peti­tioners have met their onus of proof, it must look at the totality of the evidence (see Secord Manufacturing Limited, [1975] OLRB Rep. Sept. 658). Having assessed Mr. Portelli's total evidence we simply cannot conclude he has met the onus. He has, therefore, failed to convince us that our discretion, pursuant to section 7(2) to call a representation vote, ought to be exercised in these circumstances.

19. The Board has determined that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of Mr. Dayman. The Board accordingly exercises its discretion pursuant to the provisions of section 6(2) of the Labour Relations Act and certifies the applicant on an interim basis as exclusive bargaining agent for all employees of the respondent at Rexdale, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, and excluding as well, pending the Board's final determination, the lead hand.

20. A formal certificate must await a final resolution of the composition of the bargaining unit.

ADDENDUM OF BOARD MEMBER W. G. DONNELLY;

I support the decision but wish to state that I feel that Mr. Portelli was somewhat at a disadvantage because he was not represented by counsel nor did he appear to have a very firm grasp of English.