Ontario Labour Relations Board
[1985] OLRB Rep. October 1445
2869-84-R Mr. Harry Panesar and Mr. Antonio Valente, Applicants, v. Hotel Employees Restaurant Employees Union Local 75, Respondent, v. Canadian Pacific Hotels (Chateau Flight Kitchen), Intervener, v. Group of Employees, Objectors
BEFORE: N. B. Satteifield, Vice-Chairman, and Board Members F. Burnet and L. C. Collins.
APPEARANCES: James Fyshe and Tony Valente for the applicants; Ross Wells, Robin Nunn and George Pineo for the respondent; Katharine Braid, Tony Alvarez and Grace O'Leary for the intervener; no one appearing for the group of employees.
DECISION OF THE BOARD; October 24, 1985
Reasons for Decision
- The applicants have applied under section 57(2) of the Labour Relations Act to have the Board declare that the Hotel Employees, Restaurant Employees Union, Local 75 ("Local 75") no longer represents the employees of the Canadian Pacific Hotels (Chateau Flight Kitchen) ("the employer") for whom it is the exclusive bargaining agent. Sections 57(2) and (3) of the Act provide:
(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of the new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.
(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 union to bargain on their behalf be terminated.
[emphasis added]
It is clear from a reading of section 57(3), particularly the emphasized phrases, that the Board must decide what are the wishes of the employees on an application for termination of bargaining rights. Those wishes must be in writing and section 73(1) of the Rules of Procedure under the Act prohibits the Board from receiving evidence of the employees' wishes except in writing. From the word voluntary, it follows that the Board must be satisfied that the written evidence expresses the employees' own wishes and not those of someone else; for example, not their employer's wishes or what they reasonably believe to be their employer's wishes. Written evidence on an application for termination is usually submitted in the form of a signed petition which includes a statement that the persons who signed the petition no longer wish to be represented by the trade union that has been their bargaining agent. The date set pursuant to clause 103(2)(j) of the Act for examining the wishes of the employees is the terminal date of the application. If the Board ascertains from the evidence that not less than forty-five per cent of the employees wish to terminate the bargaining rights of the union, the Board will direct the taking of a representation vote. If a majority of the ballots cast by eligible voters are cast against the union, the Board will be satisfied that a majority of the employees desire that the union's bargaining rights be terminated and it will declare that the union no longer represents employees in the bargaining unit.
Section 73(3) of the Rules of Practice permits employees opposed to an application to terminate bargaining rights to file a statement in writing expressing their opposition. The Board usually refers to these statements as revocations or counter-petitions. Since the document which they seek to oppose must be a voluntary signification of the employees' wishes, it follows that a revocation or counter-petition must also be voluntary if it is to have the effect desired by the employees who filed it. If a counter-petition is filed on or before the terminal date of the application, conforms to section 73(1) of the Rules and includes signatures of employees who also signed the petition, it raises a question of what were the wishes of those employees as of the terminal date. The Board relies on the most recent, voluntary expression of the wishes of the employees as the most reliable expression of their wishes. That has been the policy of the Board for many years and that policy was recently reaffirmed in the Board's decision in Browning-Ferris Industries, [1982] OLRB Rep. June 816. The decision deals with an application for termination of bargaining rights and it analyses the Board's rationale for relying on the most recent voluntary expression of employees' wishes as being the most reliable. The Board applies the same policy in applications for certification. See Baltimore Aircoil Interamerican Corp. [1982] OLRB Rep. Oct. 1387.
The applicants sought to satisfy the requirement of section 57(3) by filing with the Board petitions bearing signatures of persons purporting to be employees of the employer in the bargaining unit. The signatures on the petitions which matched names of employees on the lists filed by the employer totalled significantly more than 45 per cent of the employees in the bargaining unit. There also was filed with the Board a petition containing signatures of persons purporting to be employees in the bargaining unit who wished to have Local 75 continue to represent them. The Board will refer to it as the counter-petition and it reads as follows:
We, the undersigned employees of the Chateau Flight Kitchens, Malton, Ontario, wish to continue to be represented by Local 75 - Hotel Employees Restaurant Employees Union, and to have our names removed from any other petitions that may be presented to the Ontario Labour Relations Board with regard to an application for decertification against Hotel Employees Restaurant Employees Union Local 75.
The applicants' petition and the counter-petition were filed by February 1, 1985, the terminal date set for the application. Some of the signatures on the counter-petition were those of employees who also had signed the applicants' petition. That "overlap" is sufficient to reduce the apparent support for the applicants' petition below the requisite 45 per cent of the employees in the bargaining unit if the counter-petition represents the voluntary wishes of the employees who signed it.
When petitions are filed with the Board in applications involving representation rights, the Board conducts its own inquiry into their origin and the circumstances under which they were signed by employees and filed with the Board. In view of the overlap of signatures between the applicants' petition and the counter-petition in this case, the Board, in keeping with the policy referred to in paragraph 3, began its inquiry with the counter-petition. After the Board had heard all of the evidence with respect to the counter-petition, counsel for the applicants and Local 75 advised the Board that they were prepared to defer inquiry into the petition until the Board determined whether the counter-petition expressed the voluntary wishes of sufficient employees to reduce the applicants' support to less than 45 per cent of the employees in the bargaining unit. Counsel for the applicants and Local 75 were further agreed that the application would fail and be dismissed if the Board found that the counter-petition was "voluntary" and contained enough signatures to reduce the applicants' support below the requisite 45 per cent. Conversely, if the Board found that the counter-petition did not express the voluntary wishes of enough employees to have that effect, the Board would inquire into the origin, signing and filing of the applicants' petition. Respondent counsel made no submissions on the subject. Accordingly, the Board will follow its customary procedure as reaffirmed in Browning-Ferris, supra.
The Board heard the testimony of Todd Knapton, Maureen Graham, Lina Simao, Louis Paulovski, Salome Johnson and Michael Harracksingh, witnesses produced by Local 75 for purposes of the Board's inquiry into the counter-petition. The parties also had full opportunity to examine them. In addition, the Board heard the testimony of Harry Panesar, Antonio Valente, Joe Bava, Ammanio Ricardo, Tony Ricciardi and Maria Ferreira, called by the applicants to support their general challenge to the voluntariness of the counter-petition as well as their specific allegations that the signatures on it were obtained with the assistance of the employer and by the use of threats by the employer and Local 75 respecting the terms and conditions of employment and job security of the employees. John De'Almeida and Felgueires Alves, respectively the employer's customer service manager and general manager, testified for the employer in response to the allegations respecting the employer. Local 75's counsel called Gerry Jones, Local 75's business representative responsible for the bargaining unit, and recalled Lina Simao and Maureen Graham in reply. The witnesses' evidence was heard during four days of hearings carried on over four months. The Board has reviewed and weighed their evidence having regard to the firmness of their memory, the consistency of their evidence, the clarity of their recall, their ability to relate clearly the events about which they were testifying and to avoid the influence of self-interest to modify their recollections, their demeanor as witnesses, including their responses under cross-examination and what appears to the Board to be reasonably probable, having regard to the circumstances and testimony. The Board has also given account to the submissions of the parties with respect to conflicting testimony. In those respects, where the testimony of Ammanio Ricardo conflicts with that of other witnesses, the Board has preferred the testimony of the other witnesses. The findings of fact herein have been made having regard to all of the foregoing.
Local 75 is not a stranger to attempts to terminate bargaining rights for employees in the bargaining unit affected by this application. Several of the witnesses testified that they had played a passive or active role during a similar application in 1982. See Canadian Pacific Hotels Limited, [1982] OLRB Rep. June 824. Their evidence confirms the obvious conclusion that Local 75 survived that challenge to its exclusive bargaining rights. Jones' evidence was that this application represents the third attempt to dislodge Local 75. The facts recited in the Board's 1982 decision, supra, are that a former steward of Local 75 became dissatisfied with Local 75's service and after contacting and receiving advice from the business agent of another union in the air transportation industry, joined with another employee to seek to have Local 75 "decertified". It is common ground between the applicants and Local 75 that the applicants and the employees who support them are seeking to terminate Local 75's bargaining rights in the hope that the other union would make a successful application for certification once the Board terminated Local 75's bargaining rights.
The Board has no viva voce evidence as to when the applicants' signature campaign began, but their application was made after Local 75 had commenced to bargain with the employer for renewal of the collective agreement between them. There had been three bargaining meetings between them when the application was filed with the Board. A fourth one was held on the same day, January 24th, 1985 that the Board mailed its notices to the parties with respect to the application. That was the day on which a majority of the counter-petition signatures were obtained. A few employees had signed the day prior and the remainder of the signatures were collected on January 27th, 28th, 29th and 31st. The January 24th bargaining meeting was held on the employer's premises, the practice in prior negotiations. Besides Jones, Local 75's committee consisted of Graham, Simao, Paulovski and Harracksingh, all of whom are department stewards, and Ricardo who is not a steward but had volunteered to be on the committee to represent transport employees. The committee members were off work that day to attend the bargaining meeting. When it was adjourned for lunch from approximately 12:30 p.m to 2:00 p.m., the four stewards left to canvass employees for signatures on the counter-petition. Ricardo told the Board that he signed the counter-petition in the presence of the stewards before they left to collect signatures, but he did not try and get counter-petition signatures from other employees.
Some of the employees approached by the stewards during the lunch adjournment were in non-working areas like the cafeteria or washrooms and others were canvassed at or near their work places during their working hours. Usually there is only one supervisor on duty from 12:30 p.m. to 1:30 p.m. in the kitchen. He is usually in the kitchen office where he works on meal schedules for the aircraft. The others take their lunch from 12:30 p.m. to 1:30 p.m. The stewards told the Board that they knew from their experience in 1982 they needed to be cautious not to ask employees to sign a petition in circumstances where a supervisor would be aware of the activity, or where the employee would have cause to suspect a supervisor could see whether he signed the petition. When Paulovski went to the kitchen where he works as a cook, to get signatures from fellow employees, his supervisor was at work in the kitchen. Paulovski was candid in telling the Board that his presence was observed by the supervisor, that the supervisor was able to see that he was talking with employees and holding some papers in his hands. He is steward for the kitchen and when employees saw him with papers some asked him what they were. He told them that they were Local 75's petition and asked them if they would sign it. He got other signatures by approaching employees directly in the kitchen and in the dish room. The dish room is not Paulovski's work area. His supervisor knew Paulovski was excused from work that day in order to attend the negotiating meeting and so did the employees.
The Board is satisfied on the evidence that the other stewards exercised care to avoid being seen by supervisors when they were getting signatures. Nonetheless, one supervisor was told by an employee on January 24th that a petition was being circulated in the work place. The supervisor reported the information to Felgueires Alves, General Manager of the Flight Kitchen. When the bargaining meeting reconvened at approximately 2:00 p.m., Alves told Jones what he had heard. He told Jones he did not know or care whose petition it was, no petitions were to be circulated in the work place. Alves also sent instructions to all departments that employees were not allowed to circulate petitions and if they did, they were to be reprimanded. Union stewards require authorization from the employer to conduct union business at work. They are not permitted to go from their own department to another one in order to talk to employees. If a steward needs to talk to an employee, he is required to do it in the cafeteria. According to Alves, employees would expect to be reprimanded by their supervisors if they were found talking at their work place with someone from another department.
When Local 75 wants to hold meetings of the employer's employees, they are held in the employer's cafeteria. This has been the practice during Jones' tenure as business representative. Employees were accustomed to the practice. They must be arranged for times which do not interfere with operations and the employer's authorization has to be obtained in advance. Jones held meetings of employees on January 23rd. Three meetings were held so as to cover employees on all three shifts. Jones had called the meetings to discuss the negotiations, particularly some proposed changes to the seniority system. Jones did not limit the meeting to what was happening in negotiations however. He told each group at the start of its meeting he would be talking about the petition to terminate Local 75's bargaining rights and about the negotiations. He did as he said. There were some testy exchanges between Jones and a few individual employees. One was when the applicant Panesar tried to debate with Jones about a particular benefit expectation employees had in regard to the other union. Jones made it clear to Panesar that it was Jones' meeting and not a forum for the applicants. Jones also told the employees that Local 75's. counter-petition was available for signing by employees.
With respect to the applicants' petition, Jones. told the employees that they should be aware of how the "decertification" process works and of some of the risks they might face in the intervals between Local 75's bargaining rights being terminated, its collective agreement expiring and a new union getting certified and negotiating a new collective agreement. He explained that the Board would hold a vote if the application was successful. If the applicants won the vote, Local 75's bargaining rights would be terminated and the employees would no longer be covered by its collective agreement. There would be no new collective agreement until another union got certified and negotiated one. He also warned the employees of the possibility for delay, particularly if the applicants' petition was challenged. He told them it could take "a week, a month or up to three months" for the application to be decided. He identified what potential risks he thought the employees might face in the interval between the termination of Local 75's bargaining rights and a new collective agreement coming into effect. In his view, that interval would offer the employer an opportunity to:
(1) reduce wages;
(2) tamper with seniority;
(3) pay newly hired employees at or near the minimum wage; and
(4) cancel or reduce benefits.
Joncs told the employees that the employer's bargaining proposals contained a proposal that wages be reduced by five per cent. In cross-examination, he testified that he believed it possible in the current climate, presumably a reference to the economic and collective bargaining climate, that the employer might cut wages and benefits if the employees were without the protection of a collective agreement. In order to support his view that it would be possible for the employer to tamper with seniority, Jones recited to the employees a recent example at one of the Toronto Airport terminals where one union displaced another and the employees ended up having to establish anew their seniority with the employer. He told the employees that they could verify the example for themselves by talking to the cooks at the terminal. In the same fashion, he told them they did not have to take his word for how the "decertification" process operated, they could check with the [Ontario Labour Relations] Board. Jones made no mention of section 79 of the Act, commonly called the "freeze" section, which operates to preserve the status quo respecting wages and terms and conditions of employment when an application for certification is made.
Jones first heard in December, 1984 that some employees were trying to get support for another union to displace Local 75. He also learned that Joe Bava, an employee in the dish room, was supporting the other union. Bava has seven years service and was around in 1982 when Local 75 survived an attempt to have its bargaining rights terminated. Jones told Bava what he had heard about Bava supporting the other union. His account of the meeting and Bava' s differ. Bava testified before Jones. He stated to the Board that Jones had told him that he had made a mistake in signing for the other union, when it was all over Bava would be gone and he, Jones, would still be there. Bava understood Jones to be telling him that he would eventually lose his job if Local 75 remained as bargaining agent. Bava acknowledged in cross-examination that he had remained employed after Local 75 fended off a similar attempt in 1982 and, had he not wanted to work under Local 75's agreement with the employer, it would have been necessary for him to find work elsewhere. Jones' account of the meeting is that he told Bava that "enough is enough", if he wanted a union other than Local 75, go where there was a union he liked because Jones and Local 75 "are here to stay". According to Jones, Bava became a little angry with him and Jones did not understand everything Bava said. Jones was referring to the fact that they were speaking to each other in English and Bava' s natural language is Italian. Jones did understand Bava to say that he intended to keep working for the employer (at the Flight Kitchen). Jones responded that he and Local 75 were staying also and Bava would have to work under Local 75's representation.
That was where the matter ended by Bava's account and he denies that there was a second conversation on another day. Jones, on the other hand, said that Bava asked to speak with him a week or 10 days later. On this second occasion Bava is said to have asked Jones why Jones had told him that he, Jones, would fire Bava. Jones said he denied to Bava that he had said such a thing and stated that he had no power to fire Bava. Jones claims he tried to explain to Bava what he had said and they eventually parted on a handshake. Before the end of the encounter, however, Jones claims that he told Bava he wanted him as a steward for Local 75, to which Bava replied that his English was not good enough. Bava had been challenged in his cross-examination that Jones would testify about a second conversation between them during which Jones asked Bava to be a steward. Bava responded to the challenge by saying that it was not possible Jones had asked him to be a steward because his English was not good enough for that job.
Bearing in mind that the Board must determine the wishes of the employees in this application as of its terminal date and the counter-petition is the most recent expression of those wishes, the issue becomes one of whether the Board is satisfied on the evidence that the counter-petition is voluntary. That is the sole issue for any petition or counter-petition, whether the application that it relates to is an application to establish or to extinguish bargaining rights. See Westinghouse Canada Inc. [1982] OLRB Rep. July 1098 at paragraph 7. The burden of satisfying the Board rests with the party or parties relying on the document in question. In this case, the document is the counter-petition and the burden rests with Local 75. Counsel for the applicants contends that Local 75 has failed to satisfy the burden on two grounds, either of which establish the counter-petition as not voluntary. First, the employees signed the counter-petition because they perceived their employer to be supporting it, whether or not the employer actively assisted Local 75 with the counter-petition campaign. Second, Local 75 used its position as the incumbent bargaining agent to exert undue influence in getting employees to sign the counter-petition.
With respect to the first ground, it is correct that the Board has held petitions not to express the voluntary wishes of employees who signed them if the Board has evidence that it would have been reasonable for the employees to perceive their employer to have been involved with the origin, preparation or circulation of the petitions. This is because there is a natural presumption that employers prefer not to have to bargain with unions and employees see employers in that light. Thus, employees who reasonably suspect the hand of their employer behind a petition might sign the petition for either of two reasons. First, because they perceive it to be their employer's wish that they sign the petition or, second, that they sign the petition out of concern they might suffer reprisals from the employer if the employer learns of their failure or refusal to sign the petition. See Morgan Adhesives of Canada Ltd. [1975] OLRB Rep. Nov. 813. Employees who sign a petition for either of those two reasons would not be expressing their own wishes, rather they would be expressing what they perceive to be their employer's wishes. It is the employees' wishes which the Board must determine in order to discharge its responsibility under section 57(3) of the Act. That is why the Board should not give any weight to the counter-petition in the instant case, according to counsel for the applicants: it does not express the wishes of the employees who signed it; rather it expresses what they perceive to be the employer's wishes.
The difficulty with that argument is that it ignores the different purposes served by petitions and counter-petitions. Petitions seek either to prevent a union from acquiring bargaining rights or to extinguish bargaining rights which it already holds. Counter-petitions, on the other hand, seek to defend a union's attempt to acquire bargaining rights or to defend the bargaining rights which it already holds. Therefore, successful counter-petitions operate against the presumed preference of employers not to have to bargain with unions. That being the case, in order for the Board to make a finding that it would be reasonable for employees to perceive their employer as supporting a counter-petition, there would have to be evidence that the employer had made known to the employees by its actions that it preferred to deal with the union which would benefit from the counter-petition. In the context of the instant case, the Board would have to have evidence that the employer made known to the employees that it preferred to deal with Local 75 rather than with another union or no union at all. There is no evidence before the Board of actions by the employer which would convey that message to the employees. Absent such evidence, it would not be reasonable for the employees to perceive the employer as supporting Local 75's counter-petition.
The Board turns, now, to the second ground advanced by counsel for the applicants, that is, the Board should find the counter-petition not to be voluntary because Local 75 has used its position as the incumbent bargaining agent to exert undue influence in getting employees to sign its counter-petition. Undue influence is part of the Board's normal focus when assessing counter-petitions. This is evident from the Board's decision in Frito-Lay Canada Ltd., [1981] OLRB Rep. May 538 when it described the purpose of its inquiries into counter-petitions as being " ... to determine whether there is evidence of threats, intimidation, undue influence, misrepresentation, or other conduct which might impair the ability of an employee to voluntary express his wishes.". That focus recognizes the different considerations which apply when the Board is assessing what weight is to be given to counter-petitions compared with petitions. In the context of an application for certification, the Board discussed these different considerations at paragraph 10 of its decision in Frito-Lay, supra, in the following terms:
While petitioners and revocations have equal status in the sense set out above, the Board recognizes that in assessing the weight to be given to a revocation or "counterpetition" there are different considerations than in the case of a petition opposing the union. In the case of a petition, employee signatories are more likely to be sensitive to the perception of management involvement, or the fear that, a failure to sign may be communicated to their employer and could result in reprisals. In the case of membership evidence or revocations, however, support will seldom be solicited by individuals who can affect an employee's economic destiny, nor will there usually be any fear that a failure to sign a membership card or revocation will be communicated to the employer and could result in adverse employment consequences. (However, see Veres Wire [1976] OLRB Rep. July 337 where the Board rejected certain union membership evidence because of the involvement of a foreman in the union's organizing campaign). Accordingly, the purpose of the inquiry into the origination of a revocation statement is to determine whether there is any evidence of threats, intimidation, undue influence, misrepresentation, or other conduct which might impair the ability of an employee to voluntarily express his wishes. The concerns expressed in Radio Shack and Pigott Motors have no strict application to revocations or union membership evidence.
Counsel for the applicants points to the different effect of petitions compared with counter-petitions for another reason. Noting that a successful petition results in a representation vote being held and a successful counter-petition prevents a vote, counsel argues that the Board should be cautious in its assessment of Jones' conduct. In particular, he submits that the Board should not be too quick to label Jones' conduct as the reasonable exercise of freedom of expression in defending Local 75's bargaining rights from being taken over by a rival union.
Counsel for the applicants argued that Jones' remarks at and conduct of the January 23rd meetings, when viewed in the context of his role in negotiations with the employer, were coercive in nature. Counsel cites several circumstances which he claims support that proposition. The January 23rd meetings were on the employer's premises and Jones needed the employer's permission to hold them. He made it clear to the employees that they were his meetings. Jones used the meetings to reveal to the employees the employer's bargaining proposal that wages be reduced, then he proceeded to identify wage reductions as one of four potential risks employees might face if there was a delay between the termination of Local 75's bargaining rights and another union coming in. By doing so, he forged a clear link between his role in negotiations with the employer and the counter-petition. Both circumstances, counsel submits present reasonable grounds for the employees to perceive Jones as having an inside track to the employer's intentions and the opportunity to participate in the employer's decisions about the employee's future. Therefore, it would be reasonable for employees to view Jones' remarks about the four potential risks as threats to the security of their individual terms and conditions of employment and to their job security if they refused to sign the counter-petition.
Counsel argues also that the link between the negotiations and the counter-petition was reinforced the next day, January 24th, when the stewards emerged from negotiations and began soliciting signatures on the counter-petition throughout the employer's premises. Since the employees would be aware that the stewards were coming straight from the negotiations, counsel contends that it would be reasonable for employees to believe that the stewards were in a position to influence the employer's decisions about their future. That would particularly apply, according to counsel, if the stewards made remarks to employees which might be viewed by them as threats to their job security. A counter-petition signed in those circumstances, counsel submits, would not be voluntary and would not represent the wishes of the employees who signed it.
Counsel argues further that Jones misrepresented to the employees the potential risks involved in changing their bargaining agent because he failed to inform them of the protection against such risks which section 79 of the Act provides. That alone is sufficient cause for the Board to disregard the counter-petition as not representing the wishes of employees who signed it, counsel submits.
There is nothing in the evidence respecting the conduct of the stewards which supports the applicants' argument that it would be reasonable for employees to see the stewards as being able to influence their employer's decisions about their futures. The evidence does not support a finding of fact that any employees were threatened by the stewards. Nor does the evidence support a conclusion that Jones' conduct of the January 23rd meetings demonstrated an exercise of threats, intimidation or undue influence. The fact that they were
held in the employer's cafeteria was not threatening to the employees. It is an established practice to hold employee meetings there and the employees are aware of the practice. No doubt the tone and mood of the meetings was not that of a formal debating society. The meetings were about some critical bargaining issues and a concurrent campaign to terminate Local 75's bargaining rights. Within that context, the Board finds nothing in the form of the meetings that would impair the voluntary expression of employees' wishes when they were asked later if they would sign the counter-petition.
Turning to the substance of the meeting and Jones' exposition of what he believed were the potential risks facing employees, all as set out in paragraphs 12 and 13, the facts are that his remarks were made with respect to what the employer could do in any interval during which the employees would not be represented by any bargaining agent. It would not be reasonable on the facts of this case to infer that Jones was saying to the employees that the employer would reduce wages, tamper with seniority, pay new employees at or near the minimum wage and cancel or reduce benefits. Nor would it be reasonable on those facts for employees to perceive that Jones could cause those things to happen. While Jones did not point out to the employees the limitations placed on the employers' opportunity to change unilaterally any terms and conditions of employment, he did explain the steps involved in replacing one bargaining agent with another and the inherent risk of delay in completing that process. The Board is satisfied from the evidence about his explanation that he was referring to what could happen while there was no prohibition on the employer's unilateral action.
What he said was not wrong. If the employer was so inclined, it could do any or all of the things to which Jones referred as long as the section 79 freeze was not in effect. In the context of this application for termination of bargaining rights, on the issuing of a declaration from the Board that Local 75 no longer represented the employees~ the employer would be free to alter terms and conditions of employment without the consent of Local 75 or any other trade union. That situation would last until the employer received notice from the Board that a trade union had applied for certification. At that point, section 79(2) of the Act would apply and the employer could not alter, amongst other things, the terms and conditions of employment without a consent of the trade union which made the application. If the application for certification had followed immediately on the heels of the Board's declaration terminating Local 75's bargaining rights the employer would only have those few days which it takes for the Board to serve the employer with notice of the application in which to act unilaterally. Nonetheless, as brief as that period might be, the employer would be free to alter terms and conditions of employment if it chose to do so.
When Jones' remarks and his conduct of the January 23rd meetings are viewed in that context, the Board is satisfied that he has not engaged in conduct which has improperly influenced employees to sign the counter-petition. No doubt Local 75 as incumbent bargaining agent had an advantage and Jones seized it when he used the meetings on January 23rd to address the employees about the applicants' campaign to have Local 75's bargaining rights terminated. But, to adopt the Board's words in Frito-Lay, supra, the ability of the employees to voluntarily express their wishes has not been impaired by threats, intimidation, undue influence, or misrepresentation as a result of Jones' remarks at and conduct of the January 23rd meetings. In particular, the Board disagrees with the proposition that Jones' remarks and conduct at those meetings gave the employees reason to believe that he could influence the employer's decisions about the future of individual employees. It would not be reasonable on the facts before the Board for employees to perceive Jones as being able to exert that influence.
There may be circumstances where the Board has evidence before it that a trade union and an employer are in league with each other, in which circumstances the Board might find it reasonable for employees to perceive the trade union representative as being able to adversely affect their job security. Were that to be found, however, a trade union would likely be faced with more serious problems about its capacity to be the exclusive bargaining agent of the employees than the problem presented by the issue of whether its counter-petition was voluntary. The Board emphasizes in the instant case that there is not a scintilla of evidence before it to suggest that Local 75 and the employer have anything other than a bona fide collective bargaining relationship.
With respect to the encounter or encounters between Bava and Jones, whether the Board accepts Bava's testimony that there was only one, or Jones' testimony that there were two, the Board is satisfied that Jones did not threaten to have Bava's employment terminated. The Board had the opportunity to observe both witnesses as they testified. Bava gave his evidence with the assistance of an interpreter, so he heard and answered questions in his own language. Even so, he had difficulty responding clearly to questions. Jones was candid and forthcoming in his evidence about the two encounters which he said took place. He was not cross-examined on his testimony respecting Bava and nothing in the way he gave his testimony gives the Board reason to doubt his version of what he said to Bava. The one exchange which they agree took place was in English and what Jones said obviously angered Bava. Having regard to that circumstance and having had the opportunity to observe Bava as a witness, the Board is of the view that he was honestly mistaken in what he believed Jones to have said.
For all of the foregoing reasons, the Board finds that the counter-petition represents the wishes of the employees who signed it and, being the most recent statement of their wishes, it is the best evidence before the Board of the employees' wishes as of the terminal date of this application. In the result, the Board is satisfied that less than forty-five per cent of the employees in the bargaining unit for which Local 75 is the bargaining agent at the time this application was made, have voluntarily signified in writing that they no longer wish to be represented by Local 75 as of February 1, 1985, 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 purposes of making such determination.
The application is, therefore, dismissed.