[1986] OLRB Rep. February 204
1807-85-R Mike Tales, et al, Applicants, v. Hotel, Restaurant and Cafeteria EmployeesUnion, Local 75, Respondent, v. Canadian Pacific Hotels Limited (Red Oak Inn), Intervener, v. Group of Employees, Objectors
BEFORE: Thomas S. Kuttner, Vice-Chairman, and Board Members F. C. Burnet and C. A. Ballentine.
APPEARANCES: Mike Tales and Randy Dupuis for the applicants; Bois Wilson, Janet Mosher, G. Pineo, P. Smith and M. Smith for the respondent and the objectors; Mary Gersht and Valerie Stibbard for the intervener.
DECISION OF THOMAS S. KUTTNER, VICE-CHAIRMAN, AND BOARD MEMBER C. A. BALLENTINE; February 18, 1986
- This is an application pursuant to the provisions of section 57(2) of the Labour Relations Act for a declaration terminating the bargaining rights which the respondent holds with respect to the intervener employer's place of business in Windsor, Ontario, known as the Red Oak Inn. The provisions of sections 57(2) and (3) read in relevant part:
57.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy' itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
In support of this application, the applicant filed a handwritten document dated August 27, 1985, bearing the signatures of 18 persons, 16 of whom are to be considered employees for the purpose of this application who have voluntarily signified in writing as of the date determined under clause 103(2)(,j) that they no longer wish to be represented by the respondent. Given the size of the bargaining unit, that number of signatories to the petition would suffice to require the Board to exercise its jurisdiction under subsection 57(3) to order a representation vote, provided of course the Board is satisfied as to its voluntary nature.
However, there was filed as well before the Board, and prior to the terminal date set, a counter-petition dated September 9, 1985 containing the signature of 27 persons, 21 of whom would be considered employees on the relevant date for the purposes of this application. Only a small number of employees signed both the original petition in support of this application and the counter-petition in opposition thereto - the total was six. However, that number would be sufficient, if the Board were satisfied that the signification in writing in the later document were such as to negate, cancel or withdraw that expressed in the earlier document, to reduce the evidence in writing originally filed in support of this application to below that level of 45 per cent of the employees in the bargaining unit stipulated in the statute as required for the further processing of this application by direction of a representation vote.
It has long been the policy of the Board when confronted with statements of desire in the form of petitions and counter-petitions in the same application, whether for the granting of bargaining rights in an application for certification or their withdrawal in an application for termination, to consider as the most reliable indication of the wishes of the employees, the last voluntary expression of those wishes as made in writing and filed prior to the terminal date of the application. See Browning-Ferris Industries, [1982] OLRB Rep. June 816 at para. 22; and Baltimore Air Coil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387 at para. 49. The practice of the Board in these cases is to inquire first into the circumstances surrounding the origination, circulation and filing of the counter-petition in order to establish its voluntary nature. If it meets the requirement of voluntariness, this will obviate the necessity of inquiring into the circumstances surrounding the original petition which would of necessity have become "stale" evidence, no longer the last expression of employees' desires prior to the terminal date, whether voluntary or not.
In the instant case, the Board proceeded in accordance with its normal practice and first heard evidence with respect to the origination, circulation and filing of the counter-petition. Aspects of that evidence were such as to raise in the mind of the Board some doubt as to its reliability as representing the last voluntary expression of desire prior to the terminal date. The Board however did not make a ruling to this effect and chose instead to reserve on the matter, inviting the applicant to submit evidence as to the origination and circulation of the original petition filed in support of this application. That evidence was so fatal to the applicant's case as to render it unnecessary for the Board to proceed with its inquiry as to the voluntary nature or otherwise of the counter-petition, and it declines to do so. The Board wishes to stress here that it is not departing from its earlier articulated policy and established practice of considering as the most reliable expression of an employee's wishes his last voluntary expression of desire prior to the terminal date. Rather, the circumstances of this case are such that for the Board to proceed with that inquiry would serve no useful purpose inasmuch as the Board has before it evidence that, in any event, the original petition does not meet the statutory requirement that "(e)mployees in the bargaining unit have voluntarily signified in writing … that they no longer wish to be represented by the trade union. …”.Simply put, the character and nature of the counter-petition has become irrelevant for the purpose of these proceedings.
In support of this application, Mike Tales testified as to the origination and circulation of the original handwritten petition which is in the following terms:
We, the employees of the Red Oak Inn C. P. Hotels, do not want to be represented by "Hotel Employee Restaurant Employees" local 75.
The evidence adduced was flawed in a procedural sense and fatal to this application in a substantive one. In the procedural sense, the applicant failed to meet the requirements of Rule 73(5)(b) of the Board's Rules of Procedure which stipulate that oral evidence must be led with respect to the manner in which each signature on a statement of desire was obtained if its validity is not to be impugned. It may well be argued that the failure to adduce evidence with respect to certain signatures ought not to have an effect other than that these be discounted in the Board's deliberations of the matter. See Pyrotenax of Canada Ltd., 60 CLLC 16,170; Canadian General Electric Co., 61 CLLC 16,191; Pitney-Bowes of Canada Ltd., [1967] OLRB Rep. Mar. 976. However, that argument is of no avail here, inasmuch as to discount the three signatures with respect to which no evidence was led would lead to a reduction of the number of employees whose signature does appear on the statement of desire to a level below the percentage of members of the bargaining unit whose voluntary signature is required for the Board to exercise its discretion and order a vote in a termination application.
The Board however is not content to rest its decision on this technical or procedural failing on the part of the applicant to adduce evidence as to the manner in which each signature of the petition was obtained. This is particularly so in light of the fact that there was some indication made by Mr. Tales during argument that, had he been aware of the strictness of this requirement, he would have and could have called evidence with respect to the obtaining of these three signatures from a fellow employee present at the hearing. However, even had such evidence been before the Board, it could not have had any impact on the outcome of these proceedings. For, as noted earlier, the manner in which this petition originated and was later circulated was fatally flawed in a substantive sense, such that it fails completely to meet the Board's requirements as an expression of the voluntary wishes of the employees who are signatory to it. The Board wishes to stress this point, for it does not wish to leave the applicants in general and Mr. Tales in particular with the impression that, but for a procedural or technical irregularity in the adducing of evidence, this application would have been granted. Far from it, as we shall see.
What were the circumstances surrounding the origination and circulation of this petition? Mr. Tales testified that he first saw the petition on or about August 20, 1985 when he met in the coffee shop situated on the premises of the employer with the waitress who had initially drafted it. At that time the petition was undated and had the signature of one person on it. Tales agreed to help her circulate the petition among fellow employees and received it from her for that purpose. Tales himself had no knowledge of the manner in which to proceed on an application for termination. However a close friend of his had studied industrial relations in a university course and Tales determined to seek his advice. That friend was Steven Fall, the husband of Laura Fall who occupies the position of kitchen manager at the Red Oak Inn. It is common to the parties that Laura Fall occupies a managerial position, although of minimal rank, and is a person who, because she exercises managerial functions, is excluded from the bargaining unit by reason of section 1(3)(b) of the Act. Tales described himself as a "good friend" of the Falls and testified that his friendship with Laura Fall was well known at the work place.
Shortly after having obtained the petition itself, Tales approached Laura Fall in the hotel kitchen and advised her first that he was "tired of what was going on" with respect to the union and secondly that he wanted to start a petition against it. Laura Fall advised him to speak to her husband and that he would help him. This conversation took place in the presence of several employees, and the signature of two of these appear on the petition. Tales considered Laura Fall to be nothing but a go-between who would make arrangements for him to speak with her husband, and he could not recall speaking to her subsequently with respect to this matter. On the other hand, he knew of one other employee whose signature appears on the petition with whom Laura Fall had spoken about the matter.
Tales did not meet with Steven Fall until one to two weeks after his initial meeting with Laura Fall in the hotel kitchen. He did however commence circulating the petition initially after his discussion with her, and by September 6th he had obtained the signatures of approximately 10 to 12 fellow employees. These signatures were all obtained off of the employer's premises and at the homes of the various signatories. On or about September 6th Tales met with Steven Fall at the home of the latter. It would appear to have been a social visit inasmuch as Tales was accompanied by his girlfriend who was entertained by Laura Fall in the living room of the Fall's residence while Tales and Steven Fall discussed the petition in the kitchen. It was at this time that Steven Fall advised Tales that he should get in touch with the Board in order to obtain forms for the filing of an application for termination. Tales had taken the petition with him to the Falls' home and although he did not show it to Laura Fall, it was shown to her husband. The remaining signatures were obtained subsequent to that meeting. However, with respect to the great bulk if not all of the signatures which Tales obtained, he advised the employees' signatory that he was receiving assistance from Steven Fall in the filing of the petition with the Board.
For the Board to exercise its jurisdiction under section 57(3) and order a representation vote, it must be satisfied that the requisite number of employees has voluntarily signified in writing at the appropriate time that they no longer wish to be represented by the trade union. It is true that the Board is less inclined in termination applications to draw inferences adverse to the voluntariness of the statement filed in support of an application for termination. This is because that element of the sudden and otherwise inexplicable change of heart which characterizes a petition filed in certification proceedings, where an employee has within a very short span of time indicated first support for and then repudiation of a trade union, is absent in termination applications which arise at the earliest one year after a trade union has obtained bargaining rights. See N. J. Spivak Ltd., [1977] OLRB Rep. July 462. Nevertheless, voluntariness remains the touchstone in a section 57 application for termination and here as always the Board must be "[s]ensitive to the particular vulnerability of employees arising from their dependent position in the employer-employee relationship" and "le] specially scrupulous in its concern to protect the right of those [employees] to make their own choice, as distinct from that of their employer, in the matter of trade union representation ...": A. R.Milne Electric Ltd., [1982] OLRB Rep. June 911.
Here, there can be little doubt that the Board must reject the petition as a voluntary expression of the employees' desires as to trade union representation. Even if Laura Fall was acting without the consent or authorization of senior management (and indeed the indications are that she acted independently) nevertheless her status is such as to bring into play as between herself and the members of the bargaining unit that element of vulnerability so characteristic of the employer/employee relationship. It is clear that the employer through Laura Fall was involved from the earliest stages with this application for termination. It was she who advised Mike Tales that he could seek the assistance of her husband, and this in the presence of several employees. Her continued interest in the circulation and filing of the petition is evident both in the meeting which she helped to arrange between her husband and Mike Tales and in discussions which she is known to have had with at least one other member of the bargaining unit who signed the petition. Tales, whose relationship of friendship with Laura Fall was well known to members of the bargaining unit, made a point of advising those among whom he circulated the petition that it was the assistance of her husband that he was receiving in the handling and filing of this application. All of this evidence leads the Board to conclude that the employees signatory to the petition, if not actually aware of the involvement of a member of management in its origination and its circulation, would reasonably suspect such involvement and in either case be concerned that management would become aware of a decision as to whether to sign it or not. See Radio Shack, [1978] OLRB Rep. Nov. 1043. The Board cannot accept the petition as a voluntary one.
Accordingly, for all of the foregoing reasons, this application is dismissed. The applicant has failed to establish that not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing as of October 29, 1985, the terminal date set pursuant to clause 103(2)(j) of the Act, that they no longer wish to be represented by the respondent trade union.
DECISION OF BOARD MEMBER F. C. BURNET;
My colleagues' decision is based on two assertions—first, that the petition from the applicants fails because sworn evidence in respect to witnessing three signatures was not provided; and in any event, that the petition was tainted by management association. I dissent on both of these findings.
The witnessing evidence in question was not given solely because the petitioner, Mike Tales, was unaware until the very end of the hearing that the Board rule applied to every name. He had in fact such evidence available in the person of a fellow employee who said he had signed up the three, and who indicated his willingness to so state under oath. All of this came to light at the end of the hearing after closing argument had been concluded by all and in the few minutes prior to adjournment. There was no doubt that the evidence was available and that the defect was procedural and technical and entirely due to the inexperience and unfamiliarity with Board procedures of an individual employee supplicant who was not professionally represented.
The Board has allowed deviations from strict rules of procedure in deference to laymen appearing before it. Not to do so now would I think, allow procedure to defeat the fundamental purpose of the Act, which is to give effect to employee wishes in the selection of their bargaining agent. Noting the circumstances and particularly the complete absence of any contrary suggestion that the signatures were not properly secured, I would allow and accept all signatures.
Regarding the question of taint, Mr. Tales sought guidance from a non-employee who was a close friend and a student of industrial relations. It is quite incidental that his friend's wife was a junior member of management or even that she suggested the contact to Mr. Tales. She did not venture any encouragement or discouragement or any discussion of merits or preferences. To suggest that the simple act of directing an employee to a source of outside assistance, on the initiative and at the request of the employee, and without encouragement or instigation on the part of the employer constitutes "taint" is not in accord with the realities of the work place—and most particularly when such response comes from a junior member of management in the ordinary course of casual and daily employee contacts. The Board must be alert to improper employer influence in these events, but should not ascribe conspiratorial motives to ordinary and natural exchanges at the interface between first-line supervision and employees, nor such easy susceptibility of most employees to perceived management wishes, whether accurate or not.
Moreover, there was a suggestion in evidence that the origin of the petition lay in employee dissatisfaction with the incumbent union and the petition contemplated replacing it but not going non-union; and it was further alleged that management was opposed to any such change. This prompted management counsel to object and to assert its neutrality. If the management protestation in this respect is accepted as I think it should be, then it means that it is indeed neutral and the allegation of taint fails; and if the protestation is not accepted, then it means management favours the respondent union and the allegation of "taint" likewise fails in respect of the applicant petition.
I would accept the petition and order a vote.