United Steelworkers of America v. Elks Inc., 1985 CanLII 896

[1985] OLRB Rep. February 244

1493-84-R United Steelworkers of America, Applicant, v. Elks Inc., Respondent, v. Group of Employees, Objectors

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. A. Ronson and L. Lenkinski.

APPEARANCES: Keith Oleksiuk, Phil Falbo and Tom Ruddock for the applicant; Barbara G. Crosby, Scott Thompson, Jim Walker and Rick Bailey for the respondent; Kamash Ramnarine and Norman McFarlin for the objectors.

DECISION OF R. O. MacDOWELL, VICE-CHAIRMAN, AND BOARD MEMBER L. LENKINSKI; February 5, 1985

I

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

3. Having heard and considered the representations of the parties, the Board finds that the unit of employees appropriate for collective bargaining should be framed as follows:

All employees of Elks Inc., at its distribution centre in the Municipality of Metropolitan Toronto, save and except foremen, persons above the rank of foreman, office and sales staff, display staff, buyers, quality control personnel, and persons regularly employed for not more than twenty-four hours per week.

4. Apart from the Board's ruling with respect to the description of the bargaining unit, there remains an issue as to its precise composition. For reasons which need not be reviewed at this point, the union contends that four individuals on the employer's employee list should be excluded from the unit, while the employer asserts the contrary. However, the parties were in agreement that the Board should first consider the effect (if any) to be given to a statement filed by certain employees and purportedly indicating opposition to the applicant's certification.

II

5. In support of its application for certification, the trade union filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees of the respondent in the above-mentioned bargaining unit regardless of the determination of its ultimate composition. 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 one dollar payment is in the nature of consideration and confirms the act of signing.

6. 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. Certainly there is nothing to call into question the "voluntariness" of the individual acts of signing or to suggest that, by so doing, the employees were not indicating their desire to be represented by the applicant union. The form and contents of this evidence are consistent with the requirements of section l(l)(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" in excess of that required by section 7(2) of the Act, for certification without recourse to a representation vote.

7. 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. From the terms of the petition one could infer that 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 accurately reflect the employees' subsequent wishes as at the terminal date, 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. They argue that, in the circumstances of this case, the formalities required by the Act and the Board (writing, signatures, consideration, witnesses) are still insufficient to indicate the employees' real intentions — even though in a commercial context they might be quite sufficient to create binding and enforceable contractual obligations.

8. 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. Upon showing the requisite membership support, the union is "certified" or granted a licence to bargain on behalf of a group of employees —subject, of course, to their right to file a timely application terminating bargaining rights. The Board does not solicit viva voce opinions about the virtues of trade union representation (see Rule 73(2)), nor, in this jurisdiction, is a representation vote the primary vehicle for achieving the right to represent employees. That right depends upon the solicitation of a sufficient number of membership cards authorizing the union to act as bargaining agent, and to protect employees from possible employer reprisals the anonymity of the union supporters is preserved. 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, as the Board has sought to apply sections l(l)(l) and 103(2)(j) to the special circumstances of particular cases — as, for example, where the one dollar payment is loaned to a potential union supporter, or where the card is not properly witnessed, or where the card is valid on its face but has been obtained through misrepresentation or intimidation, or where there is a problem respecting one or a few membership documents but not the others, etc. 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. One of those circumstances is a purported change of heart by employees who have previously signed union membership cards.

9. 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 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.

10. The Board recognizes that "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 l(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. There is usually no confirmatory signature of a subscribing witness. 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 l(l)(l)) continue to support the union's certification.

11. 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. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the petition document? 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.

12. Frequently, as in the present case, 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 perceived to be acting on its behalf. 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 to 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. On the other hand, in the Board's experience there are enough instances where employers have sponsored or supported anti-union petitions that these employee fears cannot be discounted as being patently unreasonable.

13. 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:

14. 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:

41. 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.

Before turning to the evidence in this case it might also be useful to review some of the "mechanics" of the certification process.

III

14. On an application for certification, the Board fixes a terminal date for the receipt of documentary evidence of union membership or employee opposition to the application, and the employer is required to post a Notice to Employees, in Form 6, in a prominent place (or places) on its premises where the Notice will most likely come to the attention of the individuals potentially affected by the application. After describing the bargaining unit claimed by the applicant to be appropriate and identifying the terminal date (here, September 19, 1984), the Notice provides:

15. 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.

5. The statement of desire must be,

(a) received by the Board not later than the terminal date shown in paragraph 3; or

(b) if it is mailed by registered mail addressed to the Board at its office, 400 University Ave., Toronto, Ontario, M7A 1V4, mailed not later than the terminal date shown in paragraph 3.

6. A statement of desire that does not comply with paragraphs 4 and 5 will not be accepted by the Board.

7. Any employee, or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5 may attend and be heard at the hearing in person or by a representative. Any employee or representative who appears at the hearing will be required to testify, or produce a witness or witnesses who will be able to testify from his or their personal knowledge and observation, as to (a) the circumstances concerning the origination of the material filed, and (b) the manner in which each of the signatures was obtained.

THE BOARD MAY DISPOSE OF THE APPLICATION WITHOUT FURTHER NOTICE AND WITHOUT CONSIDERING THE STATEMENT OF DESIRE OF ANY PERSON WHO FAILED TO ATTEND.*

8. No oral evidence of membership in a trade union, or of objection by employees to certification of the applicant will be accepted by the Board except to identify and substantiate such written evidence.

9. AND FURTHER TAKE NOTICE that the hearing of the application by the Board will take place at the Board Room, 400 University Ave.,

Toronto, Ontario, on Friday the 28th day of September, 1984, at 9:30 o'clock in the forenoon. (EDT).

10. THE PURPOSE OF THE HEARING is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to, the application referred to in paragraph 1.

11. If you do not attend at the hearing, the Board may proceed in your absence and you will not be entitled to any further notice in the proceedings.

*EXPLANATORY NOTE: Where employees fail to attend in person or by a representative or to testify or produce witnesses to testify as provided in paragraph 7 above, the Board normally does not accept the statement of desire as casting doubt on the evidence of membership filed by the applicant.

The notice to employees largely reflects Rule 73 which reads, in part, as follows:

73.-(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed no later than the terminal date for the application.

(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (I).

(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witnesses as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

Finally, what is contemplated is set out explicitly in the laymen's guide entitled "A Guide to the Labour Relations Act" published by the Board and available at the Board or Ministry of Labour offices. Similar information is contained in the pamphlet entitled "Certification by the Ontario Labour Relations Board", which is also freely available to members of the public. At page 32 of the Guide, one finds the following:

A representative of the signing employees must appear and call witnesses to testify under oath about how the statement of desire originated (whose idea it was, who drafted it and where) and about the manner in which each of these signatures was obtained. This means that evidence must be given about the circumstances under which each employee signed the statement of desire by someone who was present at the time. Through all this, the Board makes certain that the names of the employees on the statement of desire are not revealed to the employer or the union. Reference is made only to a number placed beside each of the signatures by the Board. No member of management should be present when employees are asked to sign the statement, and it is essential that employees do not have the impression that management will be shown or told who signed the statement and who did not. Signatures should not be obtained on work-time, and in fact it is best that signatures be obtained away from the premises of the employer altogether, if that is possible.

The persons who present the evidence at the hearing will be questioned by the Board, and may be questioned by the representative of the union and the employer. If at the end of the enquiry the Board is not satisfied that the statement of desire is a voluntary expression of the employees who signed it, it will be disregarded.

(emphasis in original)

IV

15. In the instant case, an employee statement indicating opposition to the union was received on September 20, 1984, but, having been mailed by registered mail, was deemed by the Rules to be filed prior to the terminal date. By letter dated September 21, 1984, the Registrar wrote to the individual ("p2") appearing as the second signature on the first page of the document to acknowledge receipt. We do not think anything turns on this acknowledgement, since it is not disputed that the document was properly filed with the Board prior to the terminal date (although it is not entirely clear why the acknowledgement of receipt was sent to the second individual on the list rather than the first one). In any event, the employees were all given the required Form 6 Notice set out above, and Mr. Norman McFarlin appeared on behalf of the petitioners at the Board hearing on September 28, 1984, to give the evidence contemplated by the Rules. He was the only employee representative to attend and enter an appearance —despite the terms of the Form 6 posting which warn that employees who do not attend the scheduled hearing will not be entitled to any further notice in the proceedings, and the advice that employee representatives should be in a position to explain to the Board the origination of the employee statement and the manner in which each signature thereon was obtained. While any employee in the bargaining may intervene and become a party, only those who actually do so are entitled to continuing notice of the proceedings.

16. On September 28 the parties and their representatives met with a Labour Relations Officer and settled the bargaining unit except for the position of the single part-time employee and the status of three individuals — two of whom the applicant challenged as being excluded from the unit by virtue of section l(3)(b) and one who was said to bean office employee. The parties were advised that it would be necessary for them to appear before a panel of the Board to make representations and/or give evidence on the issues still outstanding in the application. However, the case was not reached on September 28th. It was necessary to reschedule the hearing for continuation on a later date. Mr. McFarlin received notice of the continuation of hearing. Through an apparent clerical error, so did p2. She was copied on the letter and notice sent to Mr. McFarlin even though she had not appeared at the first hearing. No notice was sent to any other non-appearing employees, and, unlike our dissenting colleague, we do not think an erroneous and unnecessary notice sent to p2 creates any positive obligation to send

continuation notices to any or all of the other employees who chose not to appear at the original hearing. Nor do we think it relieves Mr. McFarlin of his obligation to put before the Board credible evidence concerning the origination, preparation and circulation of his petition. If p1 was a key participant she should have been present to give evidence both at the first hearing day and on the day the proceeding was continued.

17. Mr. McFarlin was the only employee who sought to give evidence concerning the origination, preparation or circulation of the petition. In accordance with the Board's usual practice, Mr. McFarlin's evidence was taken under oath, and was subject to cross-examination. We should note, however, that because of section 111 of the Act, Mr. McFarlin was not required to reveal the names of the individuals who had signed the petition documents, nor were counsel for the union or employer permitted to cross-examine on that matter. The names on the petition documents were assigned numbers (p1, p2, p3, etc.) and Mr. McFarlin was instructed to refer to those numbers instead of employee names when giving his evidence concerning the origination, preparation and circulation of the petition. This procedure may restrict the union's right to cross-examination in some respects, but it is a longstanding Board practice and, the only one which, in our view, appropriately harmonizes the right to inquire into the origin of an employee statement in opposition and the right of the employees to confidentiality. The Board conducted the initial enquiry contemplated by the Rules because only the Board has custody of the employee statement in opposition. Only the Board knows the names of the signatories, and only the Board sees such things as handwriting styles, erasures or additions which may prompt inferences about how the document originated or was handled. For example, in Conair Canada Limited, [1982] OLRB Rep. Feb. 159, the presence of two different typefaces on a document prompted a question concerning its preparation, and eventually led to a witness admitting that he had earlier lied about who had typed it. Where a witness' evidence is unclear or inconsistent with what appears on the document or what he has already said, the Board seeks clarification. No objection was taken to this procedure.

18. In assessing the testimony of "rank and file" employees, the Board has not adopted an unrealistic standard. It recognizes that an untrained witness (particularly if he is without counsel) will not have perfect recollection and will occasionally have difficulty recalling or articulating precisely what happened. On the other hand, the testimony should be consistent, and generally plausible. Gaps, inconsistencies, or unexplained circumstances may well bear upon a witness' credibility — particularly where, as here, the Board has to determine whether the purported employee opposition is free from the actual or perceived hand of management. These factors, together with a witness' demeanour, responsiveness, and performance in cross-examination must be taken into account in determining what weight to be given to the testimony and, in turn, whether the Board should exercise its discretion to direct the taking of a representation vote, notwithstanding the union's showing of membership support among more than fifty-five per cent of the employees in the bargaining unit. In this regard, Mr. McFarlin's evidence was far from satisfactory. To put the matter bluntly: neither his "story" nor the manner in which he repeated it had the ring of truth.

19. It is necessary to describe certain physical characteristics of the documentary evidence.

20. The petition document consists of four pages. Pages 1 and 3 are handwritten (apparently in a single hand), and have somewhat different headings. Page 2 is a photocopy of part of page 1 (or perhaps page 1 in an earlier version) to which have been added, again in pen, words which appear on page 1. Page 4 contains a single signature in an entirely different hand.

Accompanying each employee signature is his/her address and adjacent to each signature is a carefully printed version of the employee's name. With one exception, the printed clarifications also all appear to be in a single hand.

21. Mr. McFarlin has worked for the respondent for about five months. He testified that he did not see the Form 6 Notice until the morning of September 14th. At lunchtime, he was approached by p1, an employee who works at the computer. Mr. McFarlin said he assumes she drafted the original petition documents. According to Mr. McFarlin, p1 gave him the first and third pages and on page 1 the signatures of p1 and p2 were already present. Mr. McFarlin signed as p9 at the top of the third page, then proceeded to solicit the signatures of p6 and p7 appearing on page 1, and p12, p16, and p17, appearing on page 2 — the xerox copy. We might note that the numbering to which we refer reflects the order in which the signatures appear on the page and that a number of signatures were solicited by a person (or persons) other than Mr. McFarlin, in circumstances of which he said he had no knowledge.

22. The second page of the petition document, the photocopy, poses some difficulties. According to Mr. McFarlin, he made the photocopy himself on Friday, September 14th. But, if that is so, he could not explain why the photocopy is not a "true copy", which would include the copied signatures of p1 and p2 which were supposed to be on the first page when Mr. McFarlin received it from p1, its apparent author. Nor did Mr. McFarlin know when or how certain words in the preamble came to be added to the photocopied page 2 to make it match, or why the word Board is written over a word which has been "whited out", or how the helpful printed names adjacent to the signatures came to be placed on the documents. This is curious, because the same printed names appeared on page 3 and Mr. McFarlin maintains that that page (bearing his own signature at the top) never left his possession. This he stated twice. Later he said that he gave the third page back to p1, but he did not know when or why or recall when he got it back. He said that the printed clarification on page 3 was present when he received the document back on Tuesday for the purpose of soliciting further signatures — which poses more difficulties because two of those signatures were supposedly solicited later that day (pl0 and p11), but they too have the printed clarification. So does the signatures of p16 and p17 who, according to Mr. McFarlin, signed the document on Tuesday. September 18th after work. He was unable to advance any explanation how those particular clarifications came to be placed on the document which was then in his sole possession.

23. Mr. McFarlin's evidence respecting the envelope in which the petition was mailed, is also a little unusual. He says that he obtained the envelope (stamped with the employer's address) from a supply cupboard, put all the documents in it, then took it back to p1 to affix the proper address. He left it with her then picked it up again later. He did not write it out himself, he said, because her writing was better than his. But Mr. McFarlin's printing on the appearance forms filed at both hearings is perfectly legible and since the whole exercise would take less than a minute, it is difficult to understand why he was not present when the address was placed on the envelope. He did not know where the address information came from and said that he registered the letter so that it would not get lost. If he appreciated the legal significance of registration, he did not so indicate. He did say that he did not know how the original petition document originated, what p1 may have done, who may have assisted her, or the circumstances in which the other signatures on the document were collected.

24. In cross-examination, Mr. McFarlin testified that he never spoke to anyone from management about the petition and never said to any employee that "the company" had asked him to take it around. He said that he only approached those who ultimately signed by the

petition. He approached no one else. When pressed by counsel for the union, he retorted that he knew that if the company had been mentioned "he wouldn't be here" — i.e.: that company involvement would taint the exercise. When asked where he got that idea, he initially refused to answer, then said that he obtained this information from a lawyer whom he had phoned to make an appointment before the petition was circulated. This was the first mention of any legal advice or, indeed, any advice as to how he should go about his task. He said he needed to know what to do and say before he decided to circulate the petition document — a submission which is a little difficult to square with his testimony that the document was drafted by p1 (apparently as her idea) and began to be circulated on Friday, September 14th, the very day on which the Form 6 Notice was posted. Subsequently, he said that he knew nothing about the petition until the Notice was put up, and that he had no prior advice from counsel. This whole interchange was unusual, and, in the end, implausible.

25. At the conclusion of Mr. McFarlin's evidence, he was asked if he had any further evidence to lead respecting the origination, preparation or circulation of the petition. He indicated he did not. The Board did not suggest to him that if he did not lead further evidence to support his own, and to fill in any gaps, his position might not be sustained; nor did the Board suggest to him that he could or should seek an adjournment to seek further evidence to bolster his case. We do not know why p1 was not called, given her central role in the origination and subsequent circulation of the petition, and the advice in Form 6 that her evidence would be required.

26. Garry Manuel had a different recollection of at least one conversation with Mr. McFarlin during the time when he was circulating the petition opposing the union. According to Mr. Manuel, McFarlin approached him and said that the company had asked him [McFarlin] to take up the petition to keep the union out, then inquired whether Manuel would be prepared to sign it. Manuel demurred, suggesting that he would prefer to think about it. Later in the day, McFarlin approached him once again. Once again, Manuel refused to sign, and told McFarlin that he (Manuel) did not think that the company should be involved. This time McFarlin denied any company involvement.

27. Before the Board, McFarlin denied these statements attributed to him by Manuel. We prefer Manuel's evidence.

28. It is difficult in these reasons to capture the real "flavour" of McFarlin's evidence, since the Board is obviously influenced in its assessment by his demeanour, the pattern of his responses, the apparent inconsistencies or curiosities and the contradictions on such points as whether McFarlin approached persons other than those who signed or ever said that he was acting at the request of the company (which in both cases he denied). It suffices to say that, having regard to the totality of McFarlin's evidence, we did not find him to be a credible witness and there was no one else called to explain the origination, preparation or circulation of the petition documents — in particular, p1 who seems to have had a pivotal role. Accordingly, we are not satisfied that we should give the petition any weight or rely upon it to support the exercise of our discretion to order a representation vote.

29. As we have pointed out earlier, there is a remaining dispute between the parties as to whether four individuals should or should not be included in the above-described bargaining unit. The Board has determined, however, that regardless of the resolution of this dispute, the union will ultimately be entitled to certification. In other words, whether or not the four disputed individuals are included in the bargaining unit, more than fifty-five per cent of the employees

of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 19, 1984, 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.

30. Having regard to the foregoing, the union will be certified on an interim basis in respect of the bargaining unit described in paragraph 3 above. A final certificate must await a resolution of the dispute concerning the composition of the bargaining unit and, in particular, the status of the following four individuals:

S. Binns

L. Chaupiz

V. Florez

P. Singh.

A Board Officer is hereby appointed to inquire into the duties and responsibilities of these individuals and their community of interest, if any, with the other employees in the bargaining unit.

31. In view of the Board's assessment of the evidence concerning the petition opposing the union, it is unnecessary to hear or consider the evidence of those individuals who have signed it and subsequently executed a further document revoking or cancelling their support for the objectors.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I cannot agree that a decision should be rendered at this time. I feel that a necessary party was not given adequate notice of the proceedings before the Board.

2. A petition was received by the Board by registered mail. In the normal course, the Board would send an acknowledgement to the person who signed any covering letter, and failing that, to the person whose name is first on the list of objecting employees (Employee #1). In this case, the letter of acknowledgement was sent to the employee whose name appeared second on the list (Employee #2).

3. On the day set for hearing, Mr. McFarlin, one of the "originators" of the petition, showed up at the Board. Employee #1 and Employee #2 did not come. The matter did not come on before the Board for a hearing on that day. The hearing date was rescheduled and notices were sent to Mr. McFarlin and Employee #2. By agreement of the parties, it was adjourned and again rescheduled and again notices were sent to Mr. McFarlin and Employee #2.

4. When the matter finally came before the Board for hearing, Mr. McFarlin and Employee #2 attended. It would appear that Employee #2 attended because she was concerned about all the notices she was receiving, and thought that the Board wanted her to attend at the hearing. Employee #2 was not an "originator" of the petition.

5. When Mr. McFarlin gave his evidence, it became clear that Employee #1 was an originator of the petition and that her evidence was germane if not crucial to the position of the employee objectors.

6. Following a spirited cross-examination of Mr. McFarlin by the Vice-Chairman, the majority has decided that Employee #1 received adequate notice of the proceedings before the Board and must be taken to have chosen not to appear. The majority accept Form 6 as being adequate notice to all the employee objectors. Suffice to say that in the Fuller's Restaurant case that form was found sadly lacking in particularity and was the subject of express judicial comment concerning its content. It just doesn't do the job that the Board assigns to it.

7. I fail to see how Form 6 can have any applications to the facts before us. The hearing did not take place on the date shown on the form. It was rescheduled and Employee #1 was not advised of the new hearing date.

8. Because of what happened here there simply had to be confusion in the minds of the employee objectors as to what was expected of them (e.g., the appearance of Employee #2, who had no evidence to give that was relevant to the issues). It is fundamental that adequate notice be given to all interested parties (especially laymen), and that the Board now sow the seed of doubt in anyone's mind as to whether it is necessary for him or her to attend.

9. I would reschedule the hearing so that proper notice can be given to every person who is a party.