[1983] OLRB Rep. May 676
2426-82-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC, Applicant, v. Lo Food Division of Lumsden Brothers Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Gordon D. Reekie and George Ross for the applicant; E. L. Stringer; Q. C.. Win. Lumsden and 77 Stat/en for the respondent; Theresa Miner and Jeff Lemieux for the objectors.
DECISION OF R. O. MacDOWELL, VICE-CHAIRMAN AND BOARD MEMBER
W. F. RUTHERFORD; May 2, 1983
The name of the respondent is amended to read: “Lo Food Division of Lumsden Brothers Limited".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The parties were in substantial agreement as to the description of the unit of employees appropriate for collective bargaining and were content that, in accordance with the Board's usual practice, there should be a separate bargaining unit for full-time and part-time employees. The parties were in dispute, however, about the precise geographic parameters of the bargaining unit with the union taking the position that it should apply to all employees of the Lo Food Division of the respondent in Hamilton, and the employer submitting that it should be restricted to the street address of the single “Lo Food" outlet in question. The resolution of this dispute cannot effect the disposition of this certification application because, regardless of which bargaining unit description is accepted, the employee complement remains the same.
The respondent's concern is not with the existing certification application, but rather the future problems which could arise if the union's proposed bargaining unit is accepted. Although there is currently only one “Lo Food" outlet in the City of Hamilton, that may not always be the case. Lo Food is a retail operation, but Lumsden Brothers Limited also has a wholesale, cash and carry food operation in Hamilton where access depends upon a form of membership. At the present time there is no interchange of employees, and no functional coherence or interdependence between the two operations. However, the employer was concerned that if it should decide at some time in the future to convert the cash and carry operation in a low food" store, it might fall automatically within the scope of the Board certificate or any subsequent collective agreement based upon it. It was acknowledged, however, that there were no firm plans for such conversion. Counsel advised the Board that it could be put no higher than that such change was within the employer's contemplation.
We are not unsympathetic to the employer's concerns, but are reluctant to base a bargaining unit determination on the basis of circumstances which at the present time are entirely speculative. Even if at some time in the future the suggested conversion takes place, it is by no means clear that there will be any collective bargaining ramifications. That will very much depend upon the way in which such transaction is structured, as well as the legal framework through which business is carried on, and it does not necessarily follow that bargaining rights would automatically be extended.
On the basis of the material before the Board and pursuant to section 6 of the Labour Relations Act, the Board finds the following two units to be units of employees appropriate for collective bargaining:
Full-Time Unit
“All employees of the respondent in the City of Hamilton, Ontario, save and except store manager, persons above the rank of store manager, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period."
Part-Time Unit
“All employees of the respondent in the City of Hamilton, Ontario, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except store manager and persons above the rank of store manager.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the part-time bargaining unit, at the time the application was made, were members of the applicant on March 7,1983, 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 with respect to the part-time bargaining unit.
In support of its application for certification, the trade union also filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees of the respondent in the full-time bargaining unit. This documentary evidence took the form of membership cards, which include a combination application for membership and an attached receipt. These cards are each signed by the subject employee, and the receipts are countersigned by a witness (“the collector") and indicate that a payment of one dollar has been made to the union in respect of its membership fees. The documentary evidence is supported by a properly completed Form 9, Statutory Declaration, attesting to its regularity and sufficiency. There is no allegation of any irregularity in the form of this documentary evidence, nor is there any alleged impropriety in the manner in which it was solicited. Its form and contents are consistent with the requirements of section 1(1)(l) of the Act and, as well, it meets the form and time limits prescribed pursuant to section 103(2)(j) of the Act. This documentary evidence, standing by itself, demonstrates that the union has a level of "membership support" well in excess of that required by section 7(2) of the Act, for certification without recourse to a representation vote.
There was also filed with the Board a "statement of desire" or "petition" signed by a number of employees indicating that they wish to oppose the certification of the applicant. This petition included the names of certain individuals who had previously signed membership cards and paid one dollar in respect of membership fees, and, therefore, were members" of the union within the meaning of section 1(1)(l) of the Act. These individuals had had a purported change of heart, and now allegedly no longer wish to support the applicant's certification. It was apparent that if the change of heart was a voluntary one so that the union's documentary evidence may not be fully reflective of the employees' subsequent or current wishes, the Board, in accordance with its usual practice, would exercise its discretion to order a representation vote to resolve the question of the applicant's certification. This is the course of action urged upon us by both the respondent employer and the employee objectors.
The system of certification prescribed in Ontario by the Labour Relations Act rests primarily upon an assessment of the union's membership support based upon an examination of its documentary evidence of membership. That is the way it has been for more than thirty years, and doubts about how the Board should go about its task have frequently been resolved by amending the statute (as, for example, to resolve the question of what is a "union member" and the "question" the Board was to ask itself in this regard which prompted section 1(1)(l). There is now an elaborate statutory and regulatory framework governing union membership evidence. Of course, over the same period there has also been an active and ongoing debate about the utility of representation votes as an alternative (and, some would argue, better) means of testing union support; but, to date, the Legislature has been disposed to stick with the established scheme - as have most other Canadian jurisdictions. Representation votes are a residual mechanism resorted to where the union cannot demonstrate a "clear majority" (i.e., more than fifty-five per cent) or where, in the Board's discretion, a representation vote should be held in the particular circumstances of a case. On the other hand, neither the Legislature nor the Board has taken a myopic view of the realities of the situation. Employees can and do change their minds. While in some jurisdictions the statute precludes or inhibits such expressions (British Columbia, Canada) so that certification is based solely on membership cards, and in others they are irrelevant because the preferred method of testing employee wishes is a representation vote, Ontario has evolved a middle position recognizing the validity of union membership cards, but retaining some flexibility to seek the confirmatory evidence of a representation vote where employees have put before the Board a timely ~~petition" or other document indicating a change of heart. Petitions too have been part of the certification process for decades.
“Statements of desire" (see Form 6), usually in the form of a "petition", are not regulated by the Act as directly or precisely as union membership evidence. There is no statutory definition equivalent to section 1(l)(l), nor is there any requirement for a monetary payment, in the nature of consideration confirming the act of signing. There is no statutory declaration similar to Form 9 attesting to the regularity and sufficiency of the membership evidence. Nevertheless, the existence of such statements appears to be contemplated by section 103(2)(j) of the Act and Rule 73 of the Rules of Practice. And, in any event, as we have already noted, the Board has a long-established practice of accepting such petitions and exercising its discretion to order a representation vote where: the petition is voluntary (as evidenced by testimony adduced in accordance with Rule 73 of the Rules of Practice), and the petition contains the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt whether these "members" (in accordance with section 1(1)(l)) continue to support its certification. The Board must be satisfied, however, that when these union supporters sign the petition indicating an apparent change of heart, they were doing so voluntarily, and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals.
It must be clear that the circulation of the petition is free from the actual or perceived influence of management. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Moreover, while an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. Frequently, such petitions are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be so perceived. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign because of conduct which suggests that continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case can one regard his signing the petition as being truly voluntary - although, of course, the mere identity of interest between the employer and the objecting employees is obviously not sufficient in itself to link the petition with management in the minds of reasonable employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits.
It is for this reason that the Board undertakes the inquiry contemplated by Rule 73(5) of the Rules of Practice, in order to satisfy itself from the circumstances of the origination, preparation, and circulation of the petition, that the document truly represents the voluntary wishes of those who signed it. In Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board discussed the nature of this inquiry in a long passage to which we might usefully refer:
The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC 16,264 in the following terms:
"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 or 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 of 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."
Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)
Reference might also usefully be made to the following passage from Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, wherein the Board has recently reaffirmed its approach to such employee statements.
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 involve 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 places 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 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 observations:
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 whose signatures are solicited and thus prompt the Board to respond in a similar fashion.
The petition in the instant case was prepared and circulated by Theresa Miner, the respondent's "head cashier". Ms. Miner knew nothing about the trade union before the Form 6, Notice to Employees, was received by the respondent and her first action upon learning about it was to approach the store manager to find out what could be done to oppose it. According to Ms. Miner, the store manager advised her that he could not discuss the matter so she phoned the Labour Relations Board for clarification. Someone at the Board advised her that in response to the Form 6 Notice, an individual or group of individuals could file a statement in opposition to the union's certification in the form and within the time set out in the Notice.
Ms. Miner then set about talking to employees to determine who might be for or against the union and who might be interested in signing her petition in opposition. It was Ms. Miner who drafted the petition document and played a pivotal role in its circulation. According to the evidence before us, this role was well known to all of the employees.
Ms. Miner's position in the store and responsibilities are somewhat different from that of other employees. They are paid on an hourly basis, while she is paid a salary. She makes up the cashiers' weekly schedule, and if they have any customer problems, they are referred to her. Ordinarily, she does not work at the cash registers. Seventy-five per cent of her time is spent in a small office area on the main floor of the store from which she can oversee the cashiers' activities. She delivers cash to and from their work stations, takes care of deposits, Brinks' deliveries, and invoices, and keeps track of the cashiers' time for payroll purposes. If an employee wishes to have time off, she/he advises Ms. Miner, who juggles the schedule accordingly. Ms. Miner testified that she has never had any difficulty accommodating these employee requests, and has been able to do so without reference to higher authority.
Ms. Miner also has a role in the imposition of employee discipline. That discipline is meted out in accordance with an established employee policy which, in Ms. Miner's case, relates to cash shortages for which the cashiers are held responsible. Discipline is imposed on a progressive basis, beginning with a warning for the first infraction, a one-day suspension for the second, a three-day suspension for the third, and ultimately a discharge. Employees are allowed a certain number of discrepancies within a defined time period. It is Ms. Miner who scrutinizes the situation in the first instance and determines whether a disciplinary notice is warranted. The action which she initiates is then brought to the store manager's attention and, in the ordinary course, is endorsed by him. In cross-examination (by both the employer and the union), Ms. Miner characterized her role as initiating the disciplinary action. According to Ms. Miner, the store manager has never failed to endorse such "recommendation".
The evidence indicates that Ms. Miner may also have a peripheral or participatory role in the hiring and termination of employees. Jeff Lemieux testified that he had contact with Ms. Miner at the time he was hired, turned in his job application to her, and assumed that it was Ms. Miner who checked his references prior to his actual hiring. There is no indication that the plant manager had any role in this process. Similarly, Ms. Miner told the Board about a situation in which one of the cashiers had an unsatisfactory attendance record and was told by Ms. Miner that she would have to "straighten up her act". Ms. Miner and the store manager had previously discussed the situation and how it should be dealt with, and both were present when the employee indicated that she intended to give notice of her termination. Somewhat later, the employee had a change of heart and approached Ms. Miner seeking reinstatement. Ms. Miner, however, was unwilling to accept that revocation and on consultation with the store manager, it was decided that the respondent should not do so.
There is no evidence that Gerry Hogan, the store manager, has been involved in the preparation of Ms. Miner's petition or encouraged employees to support it. On the contrary, the evidence is that he was away from the store throughout the process. The document was actually signed during breaks - in some cases, at least, in a restaurant across the street from the store. On the other hand, what is Ms. Miner's status and how would a reasonable employee consider an approach by her to sign the petition? It is evident from her duties and responsibilities that she is not an employee like the others, but has certain supervisory, monitoring, and admonitory functions more akin to that of a "foreman" or first level supervisor. Indeed, it could be argued that she exercises managerial functions within the meaning of section 1(3)(b) of the Labour Relations Act, and whether or not that argument would be successful, a reasonable employee could certainly regard Ms. Miner as part of the management structure or at least having a special relationship with the store manager. Moreover, during her discussions with the employees, she adverted to numerous changes which were likely to follow the union's certification, including the introduction of more formal and rigid job descriptions, and perhaps even the closing of the store. Were this idle speculation by "rank and file" employees with no special status or relationship with management, one could not attach much significance to it. However, where it comes from someone who, at the very least, has been a conduit to the manager and works closely with him inter alia in respect of personnel matters, including discipline, we have much more difficulty concluding that the purported second thoughts expressed in the employee petition express a truly voluntary change of heart as opposed to a concern that a failure to sign the petition would reveal the depth of their support for the union and could expose them subsequently to adverse employment consequences. And this is so even if the extent of Ms. Miner's authority over her fellow employees does not rise to the level which would justify her exclusion from the bargaining unit under section l(3)(b) of the Act.
In this case, the Board has before it documentary evidence of union membership about which there is no question. The Board also has before it a petition document containing the signatures of certain union members purporting to signify their opposition, but which originated in circumstances which cast real doubt upon the "voluntariness" of that purported change of heart. In all the circumstances, the Board has determined that it should give effect and weight to the union membership evidence and certify the applicant without recourse to a representation vote.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the full-time bargaining unit, at the time the application was made, were members of the applicant on March 7, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2Hj) 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 with respect to the full-time bargaining unit.
DECISION OF BOARD MEMBER JAMES A. RONSON;
- In this application for certification, Ms. Theresa Miner, the head cashier at the employer's store, has filed a statement of desire containing the signatures of six employees. The statement reads:
We the undersigned are employees of Lofood, 1015 Barton St. E., Hamilton Ont. We are petitioning to the Ontario Labour Relations Board against a union. We feel the right should be given to us for a secret ballot on the issue, and to the other employees.
- Ms. Miner first learned about filing a statement of desire or petition when she read a notice on green paper (the "green sheet") which had been sent by the Board to her employer. This is Form 6, which is prepared by the Board and is headed "Notice to Employees of Application for Certification and of Hearing". The first paragraph on the form reads:
TAKE NOTICE that the applicant, on February 24th, 1983, made an application to the Ontario Labour Relations Board for certification as bargaining agent of employees of Lo Foods Limited in the following bargaining unit claimed by the applicant to be appropriate:
"All employees of the respondent at Hamilton, save and except store manager and persons above the rank of store manager.”
The fourth paragraph reads:
Any employee or group of employees affected by the application and desiring to make representations to the Board in opposition to this application must send to the Board a statement in writing of such desire, which shall,
(a) contain the return mailing address of the employee or representative of a group of employees;
(b) contain the name of the employer concerned; and
(c) be signed by the employee or each member of a group of employees.
On the same day she read the green sheet, Ms. Miner also called the Board and asked what she could do. She said she was told about a petition and to have it mailed by registered mail no later than March 7, 1983.
Ms. Miner followed the instructions on the green sheet and the advice received in her call, to the letter. But for her position as head cashier at the store the statement of desire would be voluntary and the Board would order a vote. The decision of the majority holds that the petition is not voluntary because Ms. Miner would be perceived by other employees to be management and "that a failure to sign the petition would reveal the depth of their support for the union and could expose them subsequently to adverse employment consequences. There is not a scrap of evidence in this case to support that presumption by the majority. No doubt Ms. Miner will be confused, perplexed and, perhaps, feel that she and the others who signed the petition have been treated unfairly.
After all, she can say, the Form 6 sent by the Board does not say only certain employees can solicit and file statements of desire. And that same form says that she is considered by the union to be an employee who would become a member of the bargaining unit. And, at the hearing of this matter, the union did not retreat from that position; rather, the union simply argued that she was too close to management for her petition to be voluntary.
Now, as counsel for the employer pointed out, the applicant union has great experience with applications of this sort and yet it asks for a bargaining unit which excludes only the store manager. With respect to the petition though, it wants Ms. Miner to not be treated as an employee in the bargaining unit. It wants to have it both ways.
Ms. Miner could have obtained further information about petitions from the Board in the form of a written booklet and a pamphlet. Unfortunately, she would have found no information in the material which would warn her that she was precluded from soliciting a petition, in spite of the wording on the green sheet.
There is one further unfortunate aspect of this case — other employees who had a bona fide change of heart have their wishes disregarded because the wrong employee took up the petition. Together with Ms. Miner they walk blithely into the same mine field.
I think it fair to say, paraphrasing the words of Dean Arthurs, that in this case the employees have been led out on a limb and then had it sawn off behind them. And the same principles of fairness are applicable as in an estoppel situation.
The decision of the majority would be more readily accepted if it had the effect of making the petition dispositive of whether or not the union is certified. Since only a secret ballot can result from finding the petition to be “voluntary", we could order a notice posted in the store stating that it was improper (in the Board's view) for Ms. Miner to have originated the petition, and conduct a vote in such a manner that the employer will have no way of ever determining how any of the employees voted. Or, we could order a re-posting of Form 6 and set a new terminal date now that the employees realize that Form 6 does not mean what it says. In any event, a vote should be held in these circumstances. Then we would know what the employees want.