[1984] OLRB Rep. October 1481
1270-84-R Local 636, International Brotherhood of Electrical Workers AEL-CIO-CLC, Applicant, v. Markham Hydro Electric Commission, Respondent, v. Mr. R. G. Ewasiuk, Intervener, v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.
APPEARANCES: B. Fishbein and W. Moore for the applicant; M. B. Millman, Ray G. Ewasiuk, Jim Tearne, Cohn S. Parmenter and Russ Jandicu for the respondent; Dale Watson and Peter Placzek for the objectors.
DECISION OF OWEN V. GRAY, VICE-CHAIRMAN AND BOARD MEMBER W. F. RUTHERFORD; October 12, 1984
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent, save and except foremen, those above the rank of foremen, office staff, arrears officers, students employed for the school vacation period, students employed in a co-operative training programme and persons regularly employed for not more than 24 hours per week, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied, on the basis of the evidence before it, that thirty-eight of the fifty-three employees in the aforesaid bargaining unit at the time the application was made were members of the applicant on August 24, 1984, the date which the Board determines, under section 103(2)(j) of the Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act. Accordingly, the Board is satisfied that more than fifty-five per cent of the employees in the bargaining unit on the application date were members of the applicant at the relevant time. In these circumstances, the Board would ordinarily certify the applicant without a vote, pursuant to subsection 7(3) of the Act. In this case, however, a document expressing opposition to the application was filed in a timely manner. The Board's treatment of such statements was explained in Unlimited Textures Company Limited, [1984] OLRB rep. Jan. 138 at paragraphs 15, 16 and 17:
The object in certification proceedings is to determine whether a majority of employees in a unit appropriate for collective bargaining wish to be represented by the applicant trade union in their relationship with their employer. Important considerations underlie the Legislature's choice between membership evidence and the representation vote as the means of ascertaining majority wishes (see Weiler, P.C., Reconcilable Differences, (Carswell, 1980), at pp. 37-49 for a review of these considerations). The Legislature's choice of membership evidence as the primary basis for the certification decision recognizes the obvious correlation between a desire for trade union representation and the act of joining a trade union. Any uncertainty inherent in equating the two is balanced by striking a confidence level of fifty-five per cent membership at and below which the appearance of majority support for trade union representation must be confirmed by a representation vote. When there is satisfactory evidence that over fifty-five per cent of the employees in the unit are members of the applicant, the Act authorizes certification without a vote. In giving the Board a discretion to order a vote even when over fifty-five per cent membership is demonstrated, the Legislature recognized the possibility that circumstances other than the number of members in the unit might, in a particular case, make trade union membership seem less reliable as a measure of an employee's desire for trade union representation. That discretion should be exercised in a manner consistent with the balance struck by the Legislature in emphasizing membership evidence as the method of determining employee wishes when membership support exceeds fifty-five per cent (see Cleveland-Cae Metal Abrasive Limited, [1979] OLRB rep. Feb. 81 at ¶8; Baltimore Aircoil Interamerica Corporation, [1982] OLRB Rep. Oct. 1387 at ¶49; Walbar of Canada, Inc., [1982] OLRB Rep. Nov. 1734 at ¶ 17.)
Rule 73 of the Board's Rules of Practice makes provision for the filing by employees of evidence of their objection to certification. As with membership evidence, evidence of objection must be in writing, signed by the employee(s) and filed not later than the terminal date for the application (which is ordinarily the date set by the Board under section 130(2)(j) of the Act as the date as of which employee wishes are to be ascertained). Form 6, the Notice to Employees of Application for Certification, refers to such written evidence as a "statement of desire"; such documents are also commonly referred to as "petitions". Subsection 5 of Rule 73 sets out the Board's requirement that viva voce evidence be introduced at hearing as to the circumstances concerning the origination and circulation of the petition and the manner in which each signature thereon was obtained. The object of that inquiry is to determine whether the petition is a voluntary expression of the wishes of its signatories (see Baltimore Aircoil Interamerica Corporation, supra, ¶40.)
If a petition is shown to be the voluntary expression of the wishes of its signatories, the effect then given to it depends on the extent to which it casts doubt on the significance of membership in the applicant as evidence of the employee's desire for representation by the applicant. In the use of membership evidence to test employee wishes, an employee for whom no membership evidence has been filed is treated as though he or she opposes representation by the applicant. Therefore, a non-member's signature on the petition adds nothing to the assessment of support for representation by the applicant. However, the signature on the petition of an employee who is a union member casts doubt not on that employee's status as a member, but on the otherwise reasonable inference that the employee's membership in the trade union reflects a desire for representation by that trade union in collective bargaining with his employer. The evidence of an employee's membership, that is to say, the inference which otherwise reasonably follows from proof that the employee is a member, is "clouded" in that sense by the employee's subsequent signature on a voluntary petition. If the membership evidence which remains unclouded would not alone be sufficient to support certification without a vote, then the Board ordinarily exercises its discretion under section 7(2) by ordering a representation vote. However, the petition speaks only to the desires of those who sign it; its existence casts no doubt on the desires of those who did not sign. One employee's change of heart cannot logically be given any more weight than another's consistent opposition. If the membership evidence which remains unaffected by the petition is itself otherwise qualitatively satisfactory and its quantity establishes that more than fifty-five per cent of the bargaining unit employees are members of the applicant, then faithfulness to the scheme of section 7 of the Act requires that the application be treated no differently than if the Board had received neither the petition nor the membership evidence thereby affected. In other words, such a petition is not considered "relevant" to the exercise of the Board's discretion under section 7(2) because it will not alone warrant a decision ordering a vote. If a petition is not relevant, it is unnecessary to determine whether it is voluntary. To take any other approach would be to ignore the Legislature's determination that satisfactory evidence of membership of over fifty-five per cent of the employees in a bargaining unit is evidence of majority support for trade union representation sufficient to permit certification without a vote. The approach described has been applied by the Board openly and consistently for well over twenty-five years. The Labour Relations Act has been amended many times in that period. Although amendments to the Act from time to time have altered the levels of membership required for certification with and without a vote, none has been directed at this consistent exercise of the Board's discretion to order a vote. By continuing to apply the test of the relevance of and weight given to petition signatures when exercising its discretion, the Board does not "amend the Act" — it avoids doing so.
- The body of the petition in this case reads:
The following, whose names and signatures are attached wish to register a statement in opposition to the application made by the applicant (Local 636, International Brotherhood of Electrical Workers AFL-CIO-CFL) with regard to the certification of a union at Markham Hydro Electric Commission.
Our prime concern is the manner in which the vote was conducted. It was not an impartial closed ballot as some of the men were intimated.
Peter Placzek
Representative.
Of the eighteen signatures which appear below this text, nine correspond with signatures on membership evidence filed by the applicant. If the petition were found to be a voluntary expression of the true wishes of those members of the applicant who signed it, it would cast doubt on the desire for representation by the applicant of a sufficient number of members of the applicant in the bargaining unit as to lead the Board to require the confirmatory evidence of a representation vote, in the exercise of its discretion in that respect under subsection 7(2) of the Act. Accordingly, the Board heard evidence with respect to the origination and circulation of the petition.
The thirty-eight applications for membership filed by the applicant in support of this application were all obtained on August 14, 1984 at a meeting at a hotel near the employees' place of work. Some of the employees had met during the previous week and conducted some form of secret ballot vote to determine whether there was a desire to contact the applicant union. The vote was favourable, the applicant was contacted and the meeting of August 14th resulted.
Peter Placzek is employed by the respondent in its stores department. He was away during the week in which the first employee meeting was conducted, and did not attend that meeting. He did attend the meeting of August 14th. He was under the impression that the meeting was for the purpose of obtaining further information, and thought other employees had that impression. That was not what happened at the meeting, so far as he was concerned; all that took place was that employees signed applications for membership in the applicant. He says that while he and others stood back watching this process, one of the trade union representatives announced that it now had cards signed by a majority of employees, and that those standing back might as well sign up. It was his observation that a number of employees who had earlier been reluctant then proceeded to sign cards. William J. Moore is one of the two full-time representatives of the applicant who were present at the meeting of August 14, 1984. He firmly denies that either he or his colleague made any statement of the sort referred to by Placzek. He says eight or ten employees were standing around the table at which cards were being signed, keeping track of the number of signed cards. At one point one of these employees announced a majority count and urged others to sign. Moore says that at this point he stood up and told the employees present that he did not wish anyone to apply for membership who did not wish to join. Mr. Moore's version of these events is corroborated by Gerald Tripp, an employee of the respondent who had conducted the earlier employee meeting and was present at the meeting of August 14th. It is not necessary for us to determine which is the more accurate version of these events, since neither version involves any behaviour which would lead us to discount in any way the membership evidence collected at that meeting. Whatever did happen, Placzek says it left him dissatisfied, and led to discussions with fellow employees which focused, he says, on the absence of a secret ballot vote.
This application was filed on August 15, 1984. The Board gave notice of the application to the employer, and provided it with several copies of a Notice to Employees in Form 6, for posting. These Form 6 notices were posted on August 21, 1984. Mr. Placzek read a copy posted near his work area, and concluded that an "avenue of protest" was available to him and the other dissatisfied employees with whom he had spoken. The following morning he spoke to Jackie Hare, who is employed by the respondent as secretary to two or three members of its staff, including the Director of Engineering. Placzek told her he wanted to prepare a letter opposing the union, and asked if she would type it for him. She agreed. This conversation took place over the telephone, during working hours. Placzek took down the Form 6 notice he had read, attached to it his handwritten notes of the points he wished to express in his letter, and forwarded them to Ms. Hare via the respondent's internal office mail system. Later that day, David Bogues brought Placzek the typewritten document on which he subsequently obtained the signatures of eighteen of the respondent's employees. Bogues sits at the desk next to Placzek in the stores office; he is the stores foreman, and is known to employees to be related by marriage to the respondent's Manager. Placzek is sure he must have had some discussion with Bogues about the letter, which Bogues could easily have read as it was not enclosed in any envelope when he brought it to Placzek. Placzek did not seek Bogues' signature on the document, since he recognized Bogues as a member of management. The note Placzek sent to Ms. Hare was not a handwritten verbatim draft of the typewritten document brought to him by Bogues. Placzek had left it to Ms. Hare to express his words in suitable language. Although he assumes she did that, he has no personal knowledge of what happened to his handwritten notes, or how the typewritten document found its way into Mr. Bogues' hands, or whether any other member of management saw the document or participated in the drafting of it. Ms. Hare was not called as a witness, although the Notice to Employees explicitly alerts employee objectors to the necessity of calling witnesses who can testify from personal knowledge as to the circumstances concerning the origination of the material filed.
Placzek signed the document when he received it. He obtained nine other signatures that day: one during the lunch hour, one during the signatory's coffee break and the balance during working hours. He obtained seven more signatures the following day, all but one of them during working hours. The last signature was obtained the following morning, August 24th. The employees who signed all came to Placzek's desk to do so. It seems likely, as Placzek acknowledges, that Mr. Bogues was at the next desk when most of these signatures were obtained, and could have seen and heard enough to know who was signing and what was being signed. Placzek acknowledges that everyone knew he was getting signatures on a petition; neither Bogues nor any other member of management criticized him for conducting these activities during working hours. Placzek acknowledges that on seeing this neatly typewritten petition, the employees who signed it would accurately conclude that it had been prepared in the respondent's offices.
After he had obtained the last of his signatures, Placzek attended on Ms. Hare in person, because upon re-reading the Notice to Employees he realized that his petition had to have his return address on it. She typed that on the document. She also typed a mailing label addressed to the Board, and gave Placzek a manilla envelope. Placzek put the petition in the envelope, sealed it, affixed the mailing label and took the envelope to the respondent's receptionist. He told her to arrange for it to be delivered to the Board by courier. He regularly gives the receptionist instructions of that sort with respect to company correspondence. It is not apparent from the evidence how the receptionist would have known that this was anything other than company correspondence or that anyone other than the company should later be called upon to pay for the courier service. Whoever ultimately pays the courier, the courier did deliver the envelope to the Board on the terminal date.
Most non-union employers prefer to remain that way. Employees are as aware of this as they are of their economic dependence on their employer. Their sensitivity to these facts will be heightened during a union organizing campaign even if, upon learning of the campaign, the employer does nothing overt to enhance that awareness. In these circumstances, an employee's freedom to choose to join or not to join a trade union will be impaired if he believes that the result of his individual exercise of choice will become known to his employer. For that reason, section 111 of the Labour Relations Act provides for confidentiality of membership evidence. For the same reason, representation votes, when they become necessary, are conducted by secret ballot. No one would suggest that the wishes of a group of employees with respect to union representation would be accurately reflected in a show-of-hands vote conducted in the presence of their employer. The same disability attaches to a petition which originates or circulates in circumstances which lead employees to believe that their employer will become aware of whether or not they sign. If the circumstances surrounding the origination and circulation of a petition might reasonably be expected to induce such a perception in the employees asked to sign it, that petition cannot be regarded as a voluntary expression of employee wishes. The Board will not act on a petition signed in such circumstances. That is so even if actual management involvement is not proved, because the immediate issue is the reliability of the petition, not the propriety of management behaviour: see Morgan Adhesives of Canada Limited, [1975] OLRB Rep. Nov. 813.
Those who would have the Board act on a petition bear the onus of establishing that its origination and circulation were free of actual or perceived involvement of management. In order to satisfy this onus, those who rely on the document must adduce evidence of the circumstances surrounding its origination, preparation and circulation. Any gap in the evidence of the history of the document, from preparation to delivery to the Board, may prove fatal: Formosa Spring Brewery, [1974] OLRB Rep. 696; CIP Victoria Ltd., [1979] OLRB Rep. Nov. 109, Fuller's Restaurant, [1980] OLRB Rep. Sept. 1289; and, Upper Canada Glass, [1981] OLRB Rep. Aug. 1181. In this regard, the failure to call Ms. Hare as a witness is a most serious defect in the objectors' case. Equally serious are the involvement of the foreman in handing Placzek the form used by him, the likely presence of that foreman when the document was being signed by other employees and the very apparent freedom Plazcek was afforded to conduct these activities on "company time" using the resources of the respondent. These circumstances all go to the perception its signatories are likely to have had about the petition's origin and purpose and the likelihood that the fact of their signing or refusing to sign would come to the attention of their employer. It is concern for these employees' perceptions, not purposeless mechanical application of unwritten rules, which guides our appraisal of the reliability of this petition as evidence of a genuine change of heart of those who had so recently joined the applicant. Our concern goes beyond whether Mr. Placzek was in fact acting under the direction of management, and embraces the question whether the behaviour of either Placzek or management created the impression of management involvement or direction. There was not the slightest evidence that in any other circumstances this employer tolerated open, insouciant conduct of supposedly personal business for significant periods on company time and with company resources. It would have seemed to employees that the members of management would know whether or not they signed Mr. Placzek's petition. In all these circumstances, we are not prepared to give this petition any weight in the exercise of our discretion under section 7(2) of the Act.
One other matter must be considered in disposing of this application. Mr. Placzek's petition says:
Our prime concern is the manner in which the vote was conducted. It was not an impartial closed ballot as some of the men were intimated.
It is important to note that there was no evidence that anyone on behalf of the union had suggested to any employee that signing a card was a preliminary to or would necessarily result in a secret ballot vote of any kind. Had there been such evidence, that would have been a relevant consideration in the exercise of our discretion under subsection 7(2), quite apart from any question of the voluntariness or numerical relevance of the petition: see Carleton University, [1975] OLRB Rep. Apr. 308. Not only was there no evidence that any such representations were made, there is no evidence that anyone who signed a card did so in the belief, whatever its origin, that there would be a vote. Indeed, we have no explanation at all for Mr. Placzek's belief that there would be some kind of vote. As a matter of law, none is required. Whether Placzek or anyone else felt that a vote should be required is a matter of legislative policy beyond our jurisdiction. We are obliged to administer the Act as it is and not as we may feel it ought to be. To order a vote merely because some employees feel there ought to be one would be to defy the policy inherent in the present legislation.
- Accordingly, a certificate will issue to the applicant with respect to the bargaining unit described in paragraph 4 of this decision.
DISSENTING OPINION OF BOARD MEMBER W. H. WIGHTMAN;
- In an earlier case, New Strathcona Hotel (Toronto) Ltd. Berkeley Savoy Hotel, [1976] OLRB Rep. May 308, I adumbrated some of the tests the Board requires to be meticulously followed in order to have a petition validated so as to secure a secret ballot vote:
(1) the person circulating the petition cannot discuss it with the employer
(2) the person circulating the petition should not obtain signatures on the company property
(3) the person circulating the petition should not obtain signatures within sight of a member of management
(4) every signature on the petition must be witnessed and such witness must testify before the Board on matters relating to the preparation of the petition, the obtaining of the signatures and the circulation of the document in question
(5) the petition must not leave the person's hand who circulates it — if it does, then the person it is given to must appear before the Board to give evidence
(6) the person circulating the petition must not get time off from work in order to mail the petition by regular mail (it must be noted that special delivery mail, even if mailed by the terminal date, will be rejected by the Board)
(7) the person circulating the petition must not arrange for time off with pay to attend the Board hearing
(8) should the person circulating the petition have any member of management sign it for whatever reason (even if the member of management believes he or she is in the bargaining unit) then all signatures secured subsequent to that of the member of management are disregarded by the Board, and
(9) the person circulating the petition is subjected to rigorous cross-examination by the Board on questions pertaining to the origination, preparation and circulation of the petition.
From the evidence recited in the majority decision, which came to us in a straightforward manner from the petitioner himself, it is evident that the petitioner sealed his own fate by a number of errors of omission and commission any one of which would have allowed the Board to reject the petition using tests the Board has devised based on its concept of human nature and human relationships. It should be stressed that the above noted tests are not to be found in the legislation; rather they are a reflection of a viewing of the world of work which the Board is permitted to take and act upon under its broad discretionary powers. While Professor Weiler is entitled to his own views, as cited at paragraph 15 of the majority decision, the nature of the legislative process is such that I would dispute his entitlement to impute reasons for its "choice of membership evidence as the primary basis for the certification decision". In any event legislators in the Province of Nova Scotia, if they have read his book, do not find his argument persuasive and in recent years have turned to a preferential use of the secret ballot. Similarly the U.S. Congress has held firm to a policy of mandatory certification votes, except in the case of voluntary recognition, for many years through a variety of political administrations. Professor Weiler comments on the law: As a member of this administrative tribunal I do not presume to comment on the law but only on our interpretation of it.
It is a view with which we as individual members of the Board are not obliged to subscribe. In the case at hand, for instance, I am entitled, and do, believe that the insouciance with which Mr. Placzek went about his efforts to oppose the union would suggest a total indifference as to what the preference of his employer may have been. The sheer number of "mistakes" (from the point of view of Board "tests") suggests in the strongest possible terms that he was acting totally without direction or guidance from anyone. His story is too bizarre not to be true and I would have concluded that indeed the petition did reflect the free and voluntary wishes of the signatories.
As I reflect on my early dissent, I note that I omitted mention of a further reality in connection with the treatment accorded petitions. I refer to the fact that the construction the Board has put on the issue of secret ballot representations is such that whereas an employee may sign a card in the first instance on the assumption a vote will be held, if sufficient cards are signed certification will be given automatically even if all those who signed were to subsequently request a vote. Thus, it seems to me, Board practice is to exercise its discretion in one direction only.
It seems to me there could well be individuals who, though they support the union, might be content to allow their working colleagues a secret ballot vote out of a sense of fairness to them. I do not think it is correct that only by opposing the union should union supporters have it within their power to accommodate co-workers who might prefer a vote.
I give full credit to Mr. Moore of the IBEW for his efforts to set the record straight in his remarks to employees at the August 14th organizing meeting. He acted fairly and responsibly. Moreover his words reflect an understanding that peer-group pressure can be every bit as coercive as the apprehensions the Board harbours with respect to employers. To all of this I can only iterate my long-held view that the safest place for an individual to express one's innermost feelings is in the sanctity of a government supervised voting booth and I would have directed the utilization of that unique instrument of democracy.