[1986] OLRB Rep. September 1175
0621-86-R International Union of Operating Engineers, Local 793, Applicant, v. Allan G. Cook Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Ken Petryshen, Vice-Chairman, and Board Members R. J. Gallivan and C. A. Ballentine.
APPEARANCES: Bernard Fishbein and George Palanuk for the applicant; S. C. Bernardo and Dave Blenkarn for the respondent; David Weller for the group of employees.
DECISION OF THE BOARD; September 16, 1986
This is an application for certification made under the construction industry provisions of the Labour Relations Act.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The Board further finds that this application for certification does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 117(e) of the Act.
The applicant proposed a bargaining unit description encompassing all employees of the Respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, and those employees engaged as truck drivers and construction labourers in OLRB Board Area #22, excluding the ICI sector, save and except non-working foremen and those above the rank of non-working foreman. The respondent's position regarding the appropriate bargaining unit differed from the bargaining unit description proposed by the applicant in two respects. Counsel for the respondent argued that the Board should exclude from the unit students employed during the school vacation period. In addition, counsel for the respondent argued that the unit should be described in such a way so as to include the classification of site clerk. After considering the submissions of the parties, the Board ruled at the hearing that it would not exclude students employed during the school vacation period and reserved its decision with respect to the site clerk.
The Board's practice is to include students in a construction industry bargaining unit. See Cornwall Gravel Co. Ltd., [1967] OLRB Rep. Nov. 797. We were not satisfied that the circumstances in this case would warrant departing from the Board's usual practice. In describing a bargaining unit of the type sought by the applicant in this case, the Board will describe the unit to include all unrepresented trades working on the date of the application. In our view, a person classified as a site clerk is not employed in a construction industry trade. Therefore, the position of site clerk will not be included in the description of the appropriate bargaining unit.
Accordingly, having regard to the partial agreement of the parties, the above rulings regarding students and the site clerk and the provisions of section 6(1) of the Act, the Board further finds that all employees of the respondent in the District of Thunder Bay, excluding the industrial, commercial and institutional sector, engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, and those employees engaged as truck drivers and construction labourers, save and except non-working foremen and those above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
There were fourteen employees in the bargaining unit at the time the application was made. The applicant filed membership evidence on behalf of ten of those employees. The objectors filed with the Board a petition in opposition to the certification of the applicant, bearing the signatures of fifteen employees, eight of whom had earlier signed a membership card in the applicant. The applicant also filed with the Board a counter-petition signed by ten employees, seven of whom had earlier signed the petition after joining the applicant.
Counsel for the respondent and the representative of the objecting employees argued at the outset that the Board should entertain the evidence concerning the origination and circulation of both the petition and the counter-petition. After receiving the parties' submissions on this point, the Board ruled that it would begin with an inquiry into the voluntariness of the counter-petition. Once the inquiry into the counter-petition was completed, the Board indicated it would then ask the parties whether they intended to call any further evidence.
To date, there have been two days of hearing in this case, July 15th and August 18th, 1986. Unable to complete the inquiry into the counter-petition on July l5th, the case was adjourned and rescheduled for August 18th. By letter dated August 14th, counsel for the respondent advised the Board that he wished to call evidence relating to allegations of impropriety against representatives of the applicant which went to the membership evidence as well as the counter-petition. Over the objection of the applicant and after obtaining the submissions of the parties on this point, the Board ruled that it would entertain the evidence the respondent wished to call and proceeded to do so. At the end of the day on August 18th the hearing was not completed. Up to this point though, the Board had heard all the evidence and entertained the submissions of the parties relating to the counter-petition. The remaining part of this decision is confined to the Board's decision regarding the voluntariness of the counter-petition.
Two witnesses testified in support of the counter-petition. George Palanuk, a business representative of the applicant, gave evidence concerning the origination and circulation of the counter-petition. Ken Colclough testified about the origination and preparation of the counter-petition. Betty Burnell, an employee in the bargaining unit, was called by counsel for the respondent in support of the respondent's allegations of impropriety. Thus far, David Weller, the representative of the objecting employees, has not testified in the proceeding but on August 18th he placed before us a number of written statements of employees which he argued were relevant to the counter-petition. These statements contained allegations against the manner in which the union obtained its membership evidence as well as expressions of opposition to the applicant. After reviewing the statements and entertaining submissions of the parties on this point, the Board ruled it could not place any weight on the written statements given their hearsay nature. Having weighed and assessed the evidence relating to the counter-petition, including the credibility of the witnesses, the Board makes the following findings of fact.
Palanuk circulated the counter-petition but did not play a role in the union's initial efforts to obtain the membership evidence. Ed Kaplanis and Mike Shane were in charge of the union's organizing drive. As part of their discussions with employees, we are satisfied they advised them that the company or someone else would circulate a petition. As well, Kaplanis and Shane told employees that the union would circulate a counter-petition. When Palanuk circulated the counter-petition, he was aware employees had been advised previously that someone would approach them to sign a counter-petition.
Palanuk received a call from the union's Thunder Bay office on or about June 9th or
10th, 1986 and was asked to attempt to obtain support for a counter-petition from the respondent's employees. Palanuk proceeded to Marathon and met with Colclough on June 10th at approximately 8:00 p.m. Colclough gave Palanuk the counter-petition form which Colclough had prepared earlier that day. Late in the afternoon on June 10th, Colclough received a call from the union s Thunder Bay office asking him to prepare the counter-petition. The caller dictated the wording for the counter-petition and asked Colclough to give the document to Palanuk. When Colclough gave the document to Palanuk, it contained the preamble but no signatures. The heading on the counter-petition reads as follows:
COUNTER PETITION
We the undersigned employees of ALLAN G. COOK LIMITED, (The District of Thunder Bay) wish to reaffirm that we wish the INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793, to represent us for the purpose of collective bargaining, and we request the "Ontario Labour Relations Board" to disregard any petitions we may of (sic) signed stating other wise.
Palanuk had a list of those employees who previously had signed membership cards. He approached employees at their homes and asked them to sign the document in order to support the union's certification endeavour. Palanuk witnessed all of the signatures on the document. The employees who were approached read the document and signed it if they felt so inclined. No one from the management of the respondent was present when employees signed the counter-petition or played any role in the origination and circulation of the document. When discussing the counter-petition with employees, Palanuk did not make any threats or apply any undue influence. The document contains a date and time for each employee's signature. The counter-petition remained in Palanuk's possession at all times until he sent it to the Board.
Burnell's evidence confirms the testimony of Palanuk. Palanuk telephoned Burnell and asked if he could come to her home with the counter-petition. Burnell told him that if he brought the counter-petition over, she would sign it. When Palanuk came to her home, Burnell read the counter-petition and signed it. During their conversation, Palanuk made no threats to Burnell.
Counsel for the respondent argued that the applicant has not met the onus of proving that the counter-petition was signed voluntarily. In order to satisfy the onus upon it, he submits that the applicant was obliged to call Kaplanis and Shane as witnesses. He suggests that the eounter-petition originated in the discussions these organizers had with the employees, and Palanuk, he maintains, was simply performing a mechanical function after the "advance men", Kaplanis and Shane, introduced the idea of the counter-petition. Counsel for the respondent nrgues that the Board cannot be satisfied that the signatures on the counter-petition were obtained voluntarily without knowing what the organizers said to the employees about the document.
The Board has a well established practice of recognizing both petitions and counter-petitions even though both types of documents are not specifically regulated by the Act. Before it places any weight on a petition or a counter-petition, there is an onus on the party attempting to rely on the document to satisfy the Board that it represents a voluntary statement of employee wishes. To satisfy this onus, the Board requires direct evidence with respect to the origination, preparation and circulation of the document. The Board's requirements in this context are elaborated upon in Taplen Construction Limited, [1965] OLRB Rep. Nov. 542 at pp.544-45:
Where objections in writing, signed by employees, are filed with the Board, first-hand evidence is required to be produced at a hearing with respect to the origination and manner in which each of the signatures was obtained. The purpose of such evidence is to ascertain whether the documentary evidence in question represents a voluntary expression of opinion, free from the influence of management, on the part of those signing the documents. The persons who testify on these matters are those who have prepared and circulated the documents in question.
[emphasis added]
The comments of the Board in two other cases are worth noting. In Formosa Spring Brewery, [1974] OLRB Rep. Oct. 696, the Board wrote:
The Board has interpreted the words origination, preparation and circulation of the petition to be encompassed by and subsumed in the word "circumstances" in terms of its requirement, for direct evidence of the subsistence of the document from the point of its inception to the point of its reception by the Board. This by definition would obviously include first-hand evidence detailing the physical preparation and the actual delivery of the document to the Board...
[emphasis added]
In Bausch & Lomb Optical Company Limited, [1969] OLRB Rep. July 478 at 479 the Board wrote:
In the "origination cases" the Board demands some evidence of origination i.e. the circumstances surrounding the actual preparation of the document, and failure to adduce evidence in that regard will be fatal to the statement of desire. See Village Contractors Case, supra, at p. 233.
[emphasis added]
These cases make it clear that the Board's focus in a petition or counter-petition inquiry is on the specific documents upon which a party relies. The party who files the particular document must call satisfactory evidence with respect to its origination before the Board will give it any weight. In our view, the applicant has satisfied the onus on it with respect to the origination of the counter-petition.
The counter-petition before us was initiated, at the earliest, when Palanuk was contacted by the Thunder Bay office, and asked to circulate a counter-petition. Palanuk proceeded to Marathon and obtained the petition form from Colclough. These are the facts which relate to the origination of the counter-petition. The fact that discussions took place with employees about a counter-petition during the membership drive does not lead us to conclude that the document had its origin in those discussions. During a union's organizing campaign, there are likely to be discussions among employees and others concerning petitions and counter-petitions which may influence the origination of such documents. Evidence relating to such discussions may affect the Board's decision on the voluntariness issue. However, the Board does not require a party relying on a petition or a counter-petition to call evidence of this sort in its efforts to prove the actual origination and circulation of the document. As we see it, there was no obligation on the union to call Kaplanis and Shane as witnesses. We are satisfied that there is no gap in the evidence before us with respect to the origination and circulation of the counter-petition.
In assessing the different considerations which come into play in examining the weight to be given to a counter-petition, the following comments in Frito-Lay Canada Ltd. [1981] OLRB Rep. May 538 are worth reiterating:
While petitions and revocations have equal status in the sense set out above, the Board recognizes that in assessing the weight to be given to a revocation or "counterpetition" there are different considerations than in the case of a petition opposing the union. In the case of a petition, employee signatories are more likely to be sensitive to the perception of management involvement, or the fear that, a failure to sign may be communicated to their employer and could result in reprisals. In the case of membership evidence or revocations, however, support will seldom be solicited by individuals who can affect an employee's economic destiny, nor will there usually be any fear that a failure to sign a membership card or revocation will be communicated to the employer and could result in adverse employment consequences. (However, see Veres Wire [1976] OLRB Rep. July 337 where the Board rejected certain union membership evidence because of the involvement of a foreman in the union's organizing campaign). Accordingly, the purpose of inquiry into the origination of a revocation statement is to determine whether there is any evidence of threats, intimidation, undue influence, misrepresentation, or other conduct which might impair the ability of an employee to voluntarily express his wishes. The concerns expressed in Radio Shack and Pigott Motors have no strict application to revocations or union membership evidence.
In reviewing the evidence concerning the counter-petition, we are satisfied that there were no threats, intimidation, undue influence, misrepresentation or other conduct which would have impaired the ability of an employee to voluntarily express his or her wishes by signing Palanuk's counter-petition. We are satisfied that the persons who signed the counter-petition knew they were signing a document in support of the applicant union and in opposition to the petition they may have signed previously. Accordingly, we find on the balance of probabilities that the counter-petition represents a voluntary expression of the wishes of those employees who signed it.
The matter is referred to the Registrar so that the case can be re-listed for hearing in order to deal with any outstanding issues.