United Food and Commercial Workers International Union AFL-CIO-CLC v. Stearns and Foster Canada Limited (Non-Woven Fabrics)

[1985] OLRB Rep. April 607

1667-83-R United Food and Commercial Workers International Union AFL-CIO-CLC, Applicant, v. Stearns and Foster Canada Limited (Non-Woven Fabrics), Respondent, v. Group of Employees, Objectors

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members I. M. Stamp and W. F. Rutherford.

APPEARANCES: Martin Levinson and Kevin Dishart for the applicant; Robert A. Macpherson and Ron Kerr for the respondent; James F. O'Brien, George Clarke and M. R. MacDonald for the objectors.

DECISION OF THE BOARD; April 26, 1985

1. This is the continuation of an application for certification which was filed with the Board in October of 1983, and which has formed the subject matter of extensive litigation before the Board.

2. Following an inquiry by an Officer on the inclusion or exclusion of certain persons with respect to the bargaining unit, and consideration by the Board of the Officer's report, it was determined by the Board that the applicant had filed membership evidence on behalf of slightly in excess of the fifty-five per cent required under section 7(2) for certification without a vote. There was also filed in this matter prior to the terminal date, however, a statement of opposition to the application signed by a number of employees in the bargaining unit, including several who had just prior to that signed applications for membership in the applicant union. Of this latter group of employees, all but one immediately after signing the statement in opposition (or "petition) voluntarily signed a document requesting the Board to disregard their statement on the petition. That one unretracted signature, however, was sufficient to reduce the applicant's unqualified membership strength from just over fifty-five per cent to just under that mark. The Board accordingly proceeded as a final stage in this application to determine whether the statement signed in opposition by employees, or, more specifically, the employee who did not sign a subsequent document re-affirming his support for the Union, was signed under circumstances which would satisfy the Board that that action was voluntary.

3. As it happens, the employee in question actually gave evidence before the Board, not to explain subjectively why he signed the petition (which the Board would not inquire into), but to give direct evidence of the kind of statements, as the Union sees it, that supporters of the petition were making, and of the active role which foremen of the respondent were taking. That employee, Mark Gray, was a temporary employee, and has ceased to work for the respondent since early 1984. Mr. Gray was not able to specify the date exactly, but testified that he was alone in the washroom at the end of the midnight shift with Ron MacDonald, one of the circulators of the petition, and Mike Baker, the shift foreman. According to Mr. Gray, Mr. MacDonald said to him: There's a petition going around and you should sign it because heads are going to roll. The petition was being kept at the house of another employee-circulator, Mr. Clarke, and Mr. Baker said that if Mr. Gray wanted to go there to sign it, Mr. MacDonald would drive him down. Mr. Gray said he agreed at that point to meet Mr. MacDonald in the parking lot, in order to be driven to Mr. Clarke's. Before he left to meet Mr. MacDonald in the parking lot, he called into the washroom two other employees active in the Union, Mr. Whiteman and Mr. Miller. Mr. Gray testified that Mr. Miller had been the one to sign him to his union card initially, and that he felt he should tell Mr. Miller what had just happened to him, and that he was on his way with Mr. MacDonald to sign the petition. Mr. Gray testified that, as a temporary employee, he was concerned about losing his job. Mr. Miller and Mr. Whiteman, he said, told him not to worry about signing the petition, and simply wrote down what he told them of the conversation. They also told him he could come back and speak to them if he had any further problems. Mr. Gray then joined Mr. MacDonald in the parking lot, and was taken to Mr. Clarke's house to sign the petition. This, according to Mr. Gray, meant that no one could say he was either for or against the Union.

4. Mr. MacDonald, for his part, admitted speaking to Mr. Gray on more than one occasion about signing the petition, but could not recall specifically what reasons he gave to Mr. Gray for signing, apart from describing to Mr. Gray his experience with the applicant Union elsewhere. He also agrees that he drove Mr. Gray to Mr. Clarke's house to sign the petition, but denies that the arrangements to do that were made in the washroom. Mr. MacDonald denies that any conversation took place in the washroom with Mr. MacDonald and the foreman, Mr. Baker, at all, and Mr. Baker flatly denies the incident as well.

5. It should be noted that a number of allegations of improper conduct were litigated before the Board with respect to both the petitioners and the lower echelons of management, including Mr. Baker once again, but that no allegations whatever have been made against the more senior levels of the company with respect to its response to the organizing campaign in general. Indeed, the company appears to have demonstrated the kind of non-intervention in the employees' free choice that normally would assist the Board in finding any petition which does materialize to be voluntary, and apparently instructed their foremen to do the same. Unfortunately, a foreman even acting on his own normally conveys to the employees working under him an impression of authority, sufficient to cause fear in the employees, and that is why, as the Board's cases indicate, direct involvement on the part of any foreman, apparently assisting on behalf of management in the collection of names on a petition, is fatal to the issue of voluntariness. Here the alleged involvement of the foreman is with respect to the very individual whose apparent change of mind is in question, and the parties recognized at the hearing that if Mr. Gray's evidence were accepted by the Board, his signature on the petition would not be.

6. Having carefully considered the account of Mr. Gray, his demeanour, his apparent lack of interest in these proceedings at this time, and the elements of corroborative evidence present, against the evidence of those who testified against him, we are unable to conclude, on a balance of probabilities, that Mr. Gray fabricated the story that he told before the Board. While his memory of matters in general connected with the plant and people that he has ceased to have any attachment to for over a year was less than reliable, it is still not difficult to believe that he would retain a recollection of as specific an experience as the kind of dilemma he says he considered himself in the locker-room that day. And, given the impropriety of involvement by a foreman at all, the precise words used are not as significant as they might be in other situations. Finally, to the extent corroboration is a factor, Mr. Gray's testimony on cross-examination that he immediately reported his experience and his concern to Messrs. Miller and Whiteman, who made notes, is corroborated by the fact that reference to the incident can be found in the applicant's written charges against the petition filed some ten days after the event, in November 1983.

7. The Board accordingly accepts the account given by Mr. Gray, and rejects the outright denials made by Messrs. MacDonald and Baker. As a result, the Board is not satisfied on an objective basis that the circumstances under which Mr. Gray was requested to sign the petition were such as to reduce the applicant's level of unqualified membership support below fifty-five per cent on a voluntary basis. It is, therefore, not necessary to decide the other factual issues litigated before the Board in connection with this petition.

8. There are, however, two remaining matters to be addressed by the Board. At the hearing at which the Board received the parties' submissions on the Officer's report, the respondent urged the Board to direct the taking of a representation vote whether the petition had an impact or not, on the basis of the closeness of the count to the 55 per cent level, and the time that has elapsed since the applicant first filed this matter with the Board. Since that submission was made to the Board, an additional period of months has, again through the fault of no one, now gone by. The Board has also, since that earlier hearing, received a letter dated October 7, 1984, from one of the employees in the bargaining unit, Mr. Dye. That letter contains submissions in a similar vein to the respondent's, being as follows:

October 7. 1984

Dear Sir.

I am writing this letter with the hope that it will not be considered as being after the fact, that is, after our initial submission deadline of Nov'83. The purpose of this letter is to bring to your attention a significant change in the attitudes and numbers of card holders and petitioners since this time last year. (I feel they are significant because the number of employees in our plant is small.)(25-30)

First, since the time of application for certification was filed, two individuals who were admitted cardholders have left the employ of Stearns & Foster. (By their own choice). Second. I have heard of at least two cardholders who now regret ever having signed a card, but feel that any attempt to reverse this action would be considered as being after the fact and therefore, of no value.

Add to these facts the fact that, with Stearns & Foster's new expansion, some eight or ten new employees may be hired and you can see that what was submitted to you last year as a list of union supporters and a list of petitioners no longer gives a true representation of our feelings (as a body toward the need for a Union at Stearns & Foster. Only a vote on this issue. either now or after the new employees are hired, will give a truthful representation.

Please, if it is not a violation of current laws or policies, give this letter your sincerest attention.

Thank You Sincerely,

William R. Dye

(Shipper-Receiver)

Normally, of course, Mr. Dye would be put to the proof of the facts which he asserts in his letter. The Board is prepared to deal with Mr. Dye's letter, however, on the basis of assuming that Mr. Dye would in fact be able to prove what he asserts.

9. The reference to an expansion of the Stearns and Foster work force raises what the Board in the past has termed a build-up problem. The way the Board normally deals with such a problem is to defer final consideration of an application for certification until a representative number of employees are employed in the operation. However, in order to balance the entitlement of existing employees to collective bargaining against consideration of the wishes of future hires, the Board has only deferred its processing of an application where the numbers presently employed do not represent at least 50 per cent of the projected total. (See, e.g., Custom Leather Products, [1981] OLRB Rep. Aug. 1128, and the cases cited therein.) The numbers cited by Mr. Dye in his letter clearly do not bring the present case within the application of the build-up principle.

10. With respect to Mr. Dye's other submissions, the Board would note that a work force is constantly changing, and in order to make a determination upon which all parties may rely as to the percentage of employees in the bargaining unit who have signified support for the trade union, the Board must fix a point in time as of which each of the necessary determinations are made. This requirement is set out in section 7(1) of the Act:

7.-(l) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

Section 103(2)(j) provides:

103.-(2) Without limiting the generality of subsection (1). the Board has power,

(j) to determine the form in which and the time as of which 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 presented to the Board on an application for certification or for a declaration terminating bargaining rights, and to refuse to accept any evidence of membership or objection or signification that is not presented in the form and as of the time so determined.

(emphasis added)

If the Board determines that the trade union as of the terminal date fixed under section 103(2)(j) has more than 55 per cent of the bargaining unit as members, it is given a discretion to certify the trade union without the additional confirmatory step of a representation vote. Section 7(2) provides:

If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

Given the statutory scheme apparent from the provisions of the Act, this discretion is, in the absence of compelling circumstances, normally exercised in favour of certifying without a vote.

See, for example, Unlimited Textures Company Limited, 111984] OLRB Rep. Jan. 138, at para. 15, and the cases cited therein.

11. What Mr. Dye is really urging the Board to do is to abandon the concept of a fixed point in time, and to attempt rather to continually take into account either changes in the work force, or, as he reports it, changes of mind amongst certain of those who continue to form part of the respondent's work force. His position, therefore, is not materially different from that taken by the respondent at the end of these proceedings, based primarily on the efflux ion of time. In considering a similar request for a vote in Baltimore Aircoil, [1982] OLRB Rep. Dec. 1387, the Board wrote:

12. However, before considering the petition and counter-petition, we need to deal with the respondent company's position urging that the passage of time since the filing of this application justifies the directing of a representation vote. We cannot agree that a representation vote should be directed on the sole basis of the passage of time since the date of filing of this application for certification. Prior to the interim certification provisions enacted in 1975, the Board experienced many complex applications, that without the intervention of judicial review, took a very long period of time to process differences between the parties. These differences usually centered on the configuration and composition of the bargaining unit. Even today, complex applications for certification involving widespread unfair labour practices or bargaining unit problems can take more than a year to process. If the Board were to accept that the mere passage of time could so fundamentally affect the outcome of an application for certification, an unfairness would be visited on those applicants who, by no fault of their own, become involved in complex and lengthy certification matters. There may also be encouragement for some parties to seek to delay a case in order to achieve this outcome. Clearly, there are equities on both sides of this issue. The turnover in the employer's workforce since the date of application is considerable. However, as already noted, the same level of turnover is possible in a lengthy application for certification not involving judicial review. In fact, the statute, by creating the concepts of application date and terminal date, has considered the effects of labour force turnover and recognized that at some point in time the composition of a bargaining unit must be considered frozen to provide a stable basis for the purposes of a certification application. See Fuller's Restaurant, [19801 OLRB Rep. Sept. 1289.

All of this discussion, however, is premised on the fact that a discretion does exist under section 7(2) of the Act, and the Board cannot say in this one case that circumstances or causes of delay could never exist which would prompt the Board to exercise its discretion in favour of directing a vote. The circumstances of the present case, however, are not so exceptional in the Board's view as to cause it to direct the taking of a representation vote, bearing in mind the observations of the Board set out in Baltimore Air Coil, supra. Nor does the closeness of the applicant's unqualified membership support to the level of 55 per cent persuade us to alter our view. That figure presumably was chosen by the Legislature as representing in itself a clear majority (being in excess of 50 per cent), and the applicant has succeeded in establishing its membership position to be above that figure as of the point in time the Board considers relevant.

12. A certificate will accordingly issue to the applicant.