Ontario Labour Relations Board
[1985] OLRB Rep. July 1013
File No.: 3484-84-R
Parties: United Food and Commercial Workers International Union, AFL,CIO,CLC, Applicant, v. Deift Blue Farms Incorporated, Grodell Foods Limited, Grober Farms Ltd., Respondents, Group of Employees, Objectors
Before: S. A. Tacon, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
Appearances: Martin Levinson and V. Gentile for the applicant; Marc J. Somerville, Q. C., Ian S. Campbell, and Jerry Bartelse for the respondents; Garth Owens for the objectors.
DECISION OF THE BOARD; July 25, 1985
By decision of the Board dated May 31, 1985, a Board Officer was appointed to inquire into and report back on the duties and responsibilities of three individuals, C. Soares, M. Silveira and B. Patterson. This decision deals with the other issues in this certification application.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Further, the parties, except for the issue of the exclusion or inclusion of the three above-named persons, have agreed on the description of the bargaining unit. Having regard to that agreement, the Board finds that all employees of the respondents in the Municipality of Cambridge, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees appropriate for collective bargaining. It is appropriate to note here that the respondents agreed that Delft Blue Farms Incorporated, Grodell Foods Limited and Grober Farms Ltd. were related employers within the meaning of section 1(4) of the Act. Accordingly, the Board declares that the three named companies constitute one employer for the purposes of the Act.
The Board notes that the applicant had submitted an earlier certification application with respect to Delft Blue Farms Incorporated, Board File No. 3264-84-R. The applicant had requested leave to withdraw and in accordance with the Board's usual practice, the application was dismissed by decision dated April 3, 1985. The present application was filed March 29, 1985.
The Board does not consider it necessary to here reproduce the various oral rulings made during the hearing. The Board notes, though, that counsel for the respondents objected to proceeding with oral argument at the conclusion of the evidence. Mr. Somerville, Q.C., counsel at the earlier proceedings, was unable to attend on the day scheduled for continuation. Mr. Campbell attended in his stead. Counsel for the respondents wished written argument; counsel for the applicant and Mr. Owens for the employee objectors preferred oral argument. The Board considered the submissions of the parties and adopted the following procedure: the applicant would proceed first followed by the petitioner, both with oral argument; counsel for the respondents would submit written argument with the Board by June 24, 1985; no reply was to be given orally or in writing by any party.
In addition to Soares, Silveira and Patterson, the applicant challenged the inclusion of S. Wade-Briton to the schedules. The applicant was also informed of its position with respect to lost cards.
In support of its application, the applicant filed 18 membership cards, 17 of which coincided with the 26 names on the respondents' list. The cards were gathered by more than one collector, indicated the payment and receipt of $1.00, were properly dated, bore original signatures and had countersigned receipts. A Form 9 Declaration was filed attesting to the authenticity of the membership evidence.
One statement of desire was also filed with the Board containing 7 names, 5 of which coincided with the names of those who had previously signed membership cards (and excluding one challenge to the employer's lists). Finally, there was one revocation or reaffirmation filed in support of the applicant. It is not necessary for the Board to deal further with this reaffirmation since, even if proved voluntary, there is not sufficient overlap between the person signing the revocation and those signing the statement of desire in opposition to the applicant that the Board would not undertake an inquiry into the circumstances surrounding the origination and circulation of the statement of desire. That statement of desire will be considered further, however, because, if proven voluntary, it would raise sufficient doubt concerning the continued support for certification of the applicant, by a sufficient number of employees who also signed membership cards, that the Board would generally exercise its discretion under section 7(2) of the Act to direct a representation vote notwithstanding the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the applicant at the relevant time.
The Board heard testimony from some eight witnesses: Garth Owens for the employee objectors; Luis Pacheco, Michael Verkerke and Tina Conners for the applicant; Gerry Bartelse, Arie Nuys, Claudio Soares and Barry Patterson for the respondents. The Board assessed the testimony of the witnesses according to the usual criteria, including the consistency of their evidence, their demeanour while testifying, the firmness of their memory, their ability to resist the influence of interest to modify their recollections and what seems to the Board to be reasonably probable when the circumstances and the testimony of the witnesses are considered.
The Board does have some specific comments about the relative credibility of the witnesses. It is not unusual that the testimony of various witnesses differs given the passage of time between the date events occur and the hearing and the fact that witnesses are often not detached observers but participants in the events themselves. In this case, the Board is inclined to regard most of the witnesses as trying to respond to questions to the best of their recollections and to attribute most of the discrepancies to factors such as differing ability to remember events, facility in expression, etc. Moreover, many of the minor discrepancies did not concern matters of critical import to the Board's determination as to the voluntariness of the petition. With respect to Bartelse's testimony, however, the Board considers that his account of events stands in such contrast to that of other witnesses, including Nuys, a management colleague, that his evidence must be disregarded as not credible. To give but one example, Bartelse repeatedly insisted that the reason for the first meeting was to respond to low morale among employees, as allegedly reported by a government inspector, and that he was not really concerned with the rumours of "union talk" at all. Yet, Nuys readily acknowledged that "union talk" was the reason for the March 6th meeting, did not mention the "morale" problem and even his (Nuys's) version of the content of the various meetings made it perfectly clear that the "union talk" was of prime concern. Apart from Bartelse's testimony, the other accounts of the meetings of March 6th and 11th, in particular, are relatively consistent. And, while there were some differences to as to which member of management said what, there was substantial agreement as to the content of management's statements at those meetings. In the context of the foregoing, then, the Board makes the following findings of fact.
Owens testified the idea for the petition came from Gentile, a union organizer, in response to his question about whether the union organizing drive could be stopped. Gentile replied that a petition could be circulated but, if that happened, things would be all right if every one stuck together. The Board accepts Owen's testimony as to the origination of the petition for several reasons. Owens was a candid witness, in the Board's view, who attempted to respond to questions in a straightforward manner although Owens did have considerable difficulty at times in expressing himself clearly. Further, Pacheco did recall this subject being raised in conversation in circumstances when the three were present and, finally, Gentile himself was not called to contradict Owens on this point.
Several statements of desire were filed in respect of the first certification application, i.e., Board File No. 3264-84-R. Owens testified he drafted or assisted in drafting the heading on several of these. Owens stated he also drafted the heading on the petition currently before the Board, although he had discussed the petition process with his brother and had read the Board's brochure and guide to the Labour Relations Act. The Board also accepts Owens' testimony on these points. The Board regards the wording on the petition as the product, not of a professional at law, but an individual adopting legal-sounding phraseology in the view that a petition is a legal sort of document.
The signatures on the statements of desire in that first certification application, with one exception, were gathered during non-working hours or breaks outside the plant. The signatures on the second statement of desire were all obtained during non-working hours or breaks behind the plant buildings and in the adjacent parking lot. Owens stated everyone was aware of what he was doing because of the small size of the plant but that he did not talk to management about the petition nor pressure any of the employees to sign. The Board does not regard the petition or Owens' credibility as weakened by Owens' statements to Verkerke during working hours that he wished to discuss the petition at break and, later, changed this planned meeting to lunch time. The contact with Verkerke was momentary at best and stands in contrast to the sort of petition discussions on company premises during working hours which the Board has censured in the past. Similarly, the observed (but not overheard) conversations with two other employees were not lengthy and were in the course of Owens' performance of his regular duties.
All signatures were collected on the same day. Owens had exclusive possession of the petition throughout and mailed the petition to the Board himself after working hours.
The petition, however, did not take place solely in the context of the union organizing drive. Management became aware of the union activities and convened three meetings of employees, one on March 6 and two on March 11. 1985. With respect to March 6, Soares and Patterson were instructed to advise the employees that there would be a "voluntary" meeting after working hours which the employees were free to attend if they wished. Bartelse (managing director), Nuys (comptroller); Tabatchnik (plant manager) Soares, Patterson and a number of employees attended. According to Nuys, the meeting on the 6th was called to convey management's point of view to employees and find out the "reason why there was union talk" at the plant.
Nuys commenced by stating the meeting was voluntary and employees could remain or leave as they chose. He continued that there were "rumours of union talk and we wanted to sit down and find out why and what we could do together instead of having third party involvement" (to quote Nuys). Bartelse expressed similar sentiments. Initially, no employees responded. Management was then asked to leave, did so and returned some 15 minutes later. The "foremen" left with senior management as well. At this point, a number of employees expressed concerns about wage levels and inequities, job security, the attitude of Soares, etc. That meeting ended with Bartelse's comment that management would see what it could do and get back to the employees on the following Monday.
Bartelse and Nuys were out of town for the remainder of that week. On their return on Monday, they found the Board notice of the certification application. Management decided to proceed with the meetings as planned but to inform the employees that there could be no further discussions about improvements to wages, etc. since the application for certification had been filed. Nuys stated that, from his reading in the area, he felt it would be an unfair labour practice to make any offers to employees at this point. There was also evidently some discussion with counsel about the situation at some time between the meetings on the 6th and the 11th.
In fact, because the employees in the three companies finished work at different times that day, two separate meetings were held. Again, Soares and Patterson informed employees that a "voluntary" meeting would be held after work.
At the first meeting, Bartelse, Tabatchnik, Nuys and Soares attended plus three employees, Lima, Pume and Conners. Verkerke was present initially but was asked to leave by Tabatchnik, apparently because Verkerke was working at the plant pursuant to the Ontario Career Action Programe (OCAP). This meeting was relatively brief. Bartelse expressed his strong views in opposition to unions, words to the effect that he didn't get along with unions, that he didn't want third parties telling him what he could or couldn't do with his business, that it was too late to discuss matters further with employees because the certification application was filed, and such like. Tabatchnik suggested the employees form a committee among themselves, that they would probably get a lot further negotiating that way than with a union. Management also referred to the current practice of paying employees for the standard period even if work finished early and suggested things might be different if there was a union. Nuys testified he told the employees that, as the notice of the application for certification had been received, management couldn't discuss anything about salaries or benefits at this time but that management still felt strongly that they would rather deal directly with the employees rather than through a third party. The meeting ended with management referring to the green Board notices and stressing that the employees had until March 15th, the terminal date, to make up their minds.
The second meeting on the 11th was attended by Bartelse, Nuys and Tabatchnick and approximately eight employees. Bartelse again vigorously expressed his opposition to unions, that the company couldn't offer the employees anything since the application was filed, that the union could make extravagant promises but had to deal with him and "he and unions didn't get along". Management again referred to a internal committee of employees to conduct negotiations rather than a union. The meaning of the terminal date was explained in no uncertain terms. As noted earlier, there was some dispute, which the Board does not find it necessary to resolve, as to precisely which member of management made which comments. Nuys himself testified he commented that unions couldn't guarantee job security, referring to the closure of the Burns plant and UAW layoffs. According to Nuys, Bartelse stated he came to Canada to start a business to get away from some problems he experienced in Europe, that he and unions just don't get along. Nuys agreed the subject of management negotiating with an employee committee was raised. Nuys also stated he told the employees this was a democratic country, they had a free choice, they should consider all the factors and had until the terminal date to decide. Nuys further acknowledged he explained the significance of the terminal date, i.e., as the date for filing statements in opposition to the union.
The Board notes two other matters. There was disagreement as to the precise content of a conversation between Soares and Verkerke about the latter's plans to meet with a union organizer. The Board does not consider it necessary to resolve this issue in view of the Board's decision infra. Secondly, there was an alleged conversation between Verkerke and Nuys in which Verkerke was assured that his union membership would not be in factor in the decision whether or not to retain Verkerke post the OCAP period. Nuys was unsure of the timing of the conversation but placed it closely before or after the terminal date. In the Board's view, after reviewing the evidence, it is likely this followed the terminal date. In any event, the conversation had no effect on the petition and, hence, need not be dealt with further.
Counsel for the applicant reminded the Board that the present application for certification, filed April 12, 1985. was preceded by another application, dated March 5, 1985 (Board File No. 3264-84-R) in which the sole respondent (Delft) took the position that it, Grober and Grodell were related employers within the meaning of section 1(4) of the Act. The applicant sought leave to withdraw; the application was dismissed by decision of the Board dated April 3, 1985. The representative of the employee objectors in the first application also filed a petition in respect of the second application. Counsel's first submission, then, was that, should the first petition be "tainted", that "taint" would likewise apply to the second petition; N-J Spivak Limited, [1977] OLRB Rep. July 462 was referred to in support. Secondly, counsel argued that the Board should give no credence to the testimony of the petitioner for several reasons: the explanation that the petitioner got the idea for the petition from Gentile, a union organizer, was not plausible; Owens' insistence that he did not approach employees about the petition during working hours conflicted with the testimony of Verkerke and the latter's evidence should be preferred; the actual words used in the heading of the petition could not be described as "usual language" and would have required legal assistance; the petitioner's failure to recollect much of the March 6th and 11th meetings contrasted with the testimony of several other witnesses also at the meeting and constituted an attempt to protect the respondents. Thirdly, counsel contended that a petition circulated subsequent to meetings called by management at which management expressed opposition to a union should be discounted regardless of whether the actual statements by management constituted a violation of section 64 of the Act. New Ontario Dynamics Limited, [1975] OLRB Rep. Nov. 845; The Intelligencer, [1976] OLRB Rep. Mar. 120; Parnell Vending Limited, [1965] OLRB Rep. Apr. 5 were cited in support. Finally, counsel asserted that the statements made by management at those meetings did amount to a violation of the Act. In this regard, counsel submitted that the evidence of Bartelse was just not credible. The testimony of the applicant's witnesses and Nuys, however, was not tremendously different. Management had clearly expressed opposition to the union, invited the formation of a "employees' committee" and reminded employees that they had until the terminal date to change their minds about supporting a union. Further, the respondents did not have a pattern of holding such meetings. In the circumstances, then, counsel argued the petition should be found not voluntary; New Surpass Petrochemicals Limited, [1966] OLRB Rep. Mar. 892 was referred to in support.
The representative of the employee objectors, Owens, submitted that the petition was voluntary. In support, he pointed to the testimony of Verkerke, wherein Verkerke stated he was allowed to read the petition and to decide whether or not to sign. With respect to the origination of the petition, Owens affirmed his testimony that the idea came from Gentile. Owens stated that Pacheco acknowledged that he heard the question and answers regarding possible opposition to the union. While Pacheco did say that he did not hear who made these statements, Owens emphasized that it was already established that only three persons (Pacheco, Gentile and Owens) were present at the time. Finally, Owens reiterated that he had prepared the statement of desire himself, without legal help.
Counsel for the respondents, by way of written submissions~ reviewed the evidence as to the origination and circulation of the petition. Counsel submitted that Owens' explanation was credible, that there was no evidence of management involvement, that Owens would not be perceived as identified with the interests of management and, thus, the petition was voluntary. Counsel rejected submissions made by counsel for the applicant in oral argument that the meetings held by the respondents, whether per se or with consideration of the statements at the meetings, rendered the petition involuntary. It was argued that New Ontario Dynamics, supra, was distinguishable on the facts and on the basis that the respondents' meetings were voluntary and not held on company time. Likewise, counsel asserted The Intelligencer, supra, and Pamell Vending, supra, were distinguishable on their facts. To summarize, counsel contended that, to find management meetings would render the petition involuntary on a per se basis, would ignore the employer's right of free speech guaranteed in section 64 of the Act. With respect to the management statements at the meetings, counsel reviewed the evidence, stressing that the first meeting was held prior to knowledge of an impending application for certification. Further, counsel argued that Bartelse and and Nuys were credible witnesses and there was nothing in the statements made which would result in a finding that the petition was involuntary. No cases were referred to in support.
It is well settled that the employee objectors bear the onus of proving that the statement of desire constitutes a voluntary expression of the true wishes of the employee signatories. As stated in Radio Shack [1978] OLRB Rep. Nov. 1043:
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."
The Board is satisfied that Owens prepared and circulated the petition without direct management involvement. Nor does Owens himself hold a position comparable to that of lead hand, for example. In such cases, the Board has been cautious in balancing the rights of individuals in the bargaining unit to circulate a petition against the organizational reality that a "lead hand" has a special relationship with management and employee perceptions are particularly important in this context: see Cornelius Manufacturing, Board File No. 1704-84-R, December, 1984, unreported; Burlington Northern Air Frieght, Board File No. 1198-84-R, November, 1984, unreported; Dad's Cookies, [1976] OLRB Rep. Sept. 545; F. W. Woolworth Co. Limited, [1982] OLRB Rep. May 797.
The petition, however, did follow several meetings between management and employees, the first meeting on March 6th amidst "rumours" of a union organizing drive and two more on March 11th, immediately after the Board notice of the certification application was received by the company. Management regarded those meetings as "voluntary", as an opportunity for the company to express its views. The Board does not agree with such a benign characterization of those gatherings.
An employer is not required to remain neutral in the face of a union organizing drive. Section 64 of the Act upholds an employer right of "free speech", provided coercion, intimidation, threats, promises or undue influence are not utilized. As stated in Dylex Limited, [1977] OLRB Rep. June 357 at para. 19:
... where the difficulty inherently arises, however, is in trying to define the line at which an expression of views by an employer becomes "coercion, threats, promises or undue influence." In seeking to establish where the line lies the Board starts with the presumption that employees recognize that employers generally are not in favour of having to deal with employees through a trade union, and that therefore it ought not to surprise them when their employer indicates that he would prefer it is they voted against a trade union. Following from this the Board takes the view that an invitation to employees from their employer to vote against a trade union, in the absence of any surrounding facts or circumstances which would cause the employees to place undue emphasis on such statements, does not constitute undue influence within the meaning of section 56 [now section 64]. (See, Playtex Limited, [1972] OLRB Rep. Dec. 1027.) On the other hand, however, the Board is also cognizant that an employee may be peculiarly vulnerable to employer influences. This point is clearly brought out in the decision of the Canada Labour Relations Board in the Taggart Service Limited case [(1964) CLLR Transfer Binder 64-'66, 16,015 at page 13,055] the following excerpt from which was cited with approval by this Board in the leading case of Bell & Howell Ltd., [1968] OLRB Rep. Oct. 695 at p.706:
An employer may express his views and give facts in appropriate manner and circumstances on the issues involved in representation proceedings in so far as these directly affect him and has the right to make appropriate reply to propaganda directed against him in relation thereto. However, he should bear in mind in so doing the force and weight which such expressions of views may have upon the minds of his employees and which derive from the nature and extent of his authority as employer over his employees with respect to their wages, working conditions and continuity of employment. He should take care that such expressions of views do not constitute and may not be reasonably construed by his employees to be an attempt by means of intimidation, threats, or other means of coercion to interfere with their freedom to join a trade union of their choice or to otherwise select a bargaining agent of their own choice.
- Management seeking to express their views, then, must exercise caution in the manner and forum which is chosen to communicate those opinions. If the vehicle selected is a meeting to which employees are invited", the management must be even more meticulous and prudent about its statements. A meeting is not "voluntary" merely because it is so labelled. The Board must have regard to all the circumstances, including the size of the bargaining unit. Where, as here, there are relatively few employees, the impact of employer statements, the likelihood of coercion and intimidation, particularly of the subtle kind, is greatly increased. Again, it is useful to refer to the following passage from New Ontario Dynamics, supra, at para. 16:
We also note that the holding of a meeting prior to the origination of an opposition petition has traditionally been viewed with suspicion by the Board. It is for those in support of the document to satisfy the Board that it represents a voluntary expression of wishes and the Board has often dismissed petitions originating after a meeting of this kind. (See Bulk-Lift Systems Limited [1961] OLRB Mthly. Rep. Mar. 431; Canadian Mouldings Ltd. [1967] OLRB Mthly. Rep. Nov. 743; General Markets Limited 62 CLLC 16,245; Travelaine Trailer Manufacturing Ltd. [1970] OLRB Mthly. Rep. Nov. 829; Parnell Vending Limited [1965] OLRB Mthly. Rep. Apr. 5; Hayes Steel Products [1964] OLRB Mthly. Rep. Apr. 30.) Because of the delicate nature of the employer/employee relationship described in Pigott Motors (1961) Limited, 63 CLLC 16,264, such meetings convey the anti-union sentiments of the management regardless of their content and, because of this, tend to taint the following efforts of employees who decide to oppose the application. In fact the very formality of holding such meetings demonstrates an employer's concern, and may, in the eyes of the employees, align with management those employees subsequently circulating a petition. And it is a well known principle that the Board will dismiss a petition that has been circulated in circumstances where it would reasonably appear to the employees that those circulating the petition have the support and approval of management. (See Rubbermaid (Canada) Limited [1967] OLRB July 336.
Counsel for the applicant submitted that the holding of such meetings is per se a contravention of the Act, regardless of the content of the management statements. The Board is hesitant to accept such a broad proposition, particularly in light of the company's right to freedom of expression as also set out in the Act. Moreover, in the instant case, this submission need not be resolved given that the Board regards the actual statements by management as clearly exceeding the limits of free speech.
The March 6th meeting, called amidst rumours of union organizing activity, was the first meeting of employees ever called by management. Employee grievances were solicited; management conveyed the impression that the grievances would be responded to at the follow-up meeting scheduled for March 11th. On March 11th, however, management indicated that nothing could be done to improve wages, benefits, etc. because of the certification application. Management may not have sought legal counsel on this point or may have relied on their readings in the field. Employees, however, to paraphrase the comment in the Globe and Mail case, [1982] OLRB Rep. Feb. 189, are not likely to miss the inference that it is the employer who confers or promises, or, may deny benefits, unless its wishes are accommodated (see also Parnell Vending, supra).
Moreover, there was reference by management at the March 11th meetings to the formation of an employees' "committee" as an alternative to the union. Such proposals or suggestions have been repeatedly censured by the Board as constituting unlawful interference: see Elbertsen Industries Limited, [1984] OLRB Rep. Nov. 1564; New Surpass Petrochemicals, supra; Homeware Industries Limited, [1981] OLRB Rep. Feb. 164; Upper Canadian Furniture Limited, [1981] OLRB Rep. July 1016; Primo Importing and Distributing Co. Ltd., [1983] OLRB Rep. June 959.
The Board regards management's statements opposing unions as going beyond that which would be "expected" (see Dylex, supra). Those statements, in the surrounding circumstances, cannot be regarded as employer "opinion"; they were coercive and intimidatory. It is one thing for management to state its opposition to a union. It is quite another for management to repeatedly and vociferously denounce "third party" interference in its business, to stress that unions could not guarantee job security by pointing to a recent closing of a large meat packing plant in the area, to state unequivocally that this management just "didn't get along" with unions and then "suggest" that employees could form an "employee committee" instead of a union and "inform" employees that they had until the terminal date to weigh the factors and, if they so "chose", to file a statement with the Board in opposition to the union. The vulnerability of employees to employer influences has been noted in Dylex, supra, in the passage set out earlier in paragraph 28 above. In the instant case, management played upon that vulnerability in a less than subtle manner. Both management witnesses considered the meetings as "voluntary", as opportunities for the company to "inform" the employees of management's opinions. In the Board's view, however, no reasonable employee would have been under any illusions whatsoever as to the course of action management wished their employees to follow.
The Board would also note, in view of counsel for the respondents' submission that the meetings were not on company time, that the company practice was to pay employees until the formal end of shift although they could leave once the work was finished. It appears that the March 6th and at least the first of the March 11th meetings would be on "paid time", although after that day's work was finished. However, in the Board's view, nothing turns on the issue of whether the meetings were or were not "on company time" given the other circumstances and the content of the management statements.
Counsel for the applicant referred to N-J Spivak, supra, for the proposition that, in a certification application, a "tainted" first petition carries over to a subsequent petition. In this case, it is not necessary to pursue this argument. Rather, the "second" petition, i.e., that statement of desire currently before the Board, was sufficiently proximate to the meetings of March 6 and March 11 to be directly "tainted". The Board simply does not regard a petition circulated in the wake of management's conduct at the March 11th meetings, in particular, as a voluntary expression of the true wishes of the employees. Thus, the Board declines to place any weight on the petition or regard that statement of desire as casting doubt on the membership evidence filed by the applicant.
To recapitulate, the Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondents in the bargaining unit at the time the application was made, were members of the applicant on April 22, 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 the purpose of ascertaining membership under section 7(1) of the said Act.
There remains the issue of the status of the three persons named in paragraph 1 as excluded from or included in the bargaining unit. The Board has determined, however, that the applicant's entitlement to certification does not depend upon the ultimate resolution of that dispute. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, certifies the applicant as bargaining agent for all employees of the respondents in the Municipality of Cambridge, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period and, pending the final resolution of the status of C. Soares, M. Silveira and B. Patterson, excluding these three as well.
A formal certificate must await the final determination of the remaining matter in dispute.