[1986] OLRB Rep. October 1389
2755-85-R Lyse Lebrun, Samuel (David) Wilson, Applicants, v. London and District Service Workers' Union Local 220, Service Employees International Union, Respondent, v. Pioneer Youth Services Ltd., Intervener
BEFORE: Ian C. Springate, Alternate Chairman, and Board Members R. J. Swenor and W. F. Rutherford.
APPEARANCES: Lyse Leb run, Samuel Wilson and David Shepherd for the applicants; Randy Levinson, Mike Morin and Angela Miller for the respondent; Charles R. Robertson for the intervener.
DECISION OF IAN C. SPRINGATE, ALTERNATE CHAIRMAN, AND BOARD MEMBER W. F. RUTHERFORD; October 24, 1986
The name of respondent is amended to read: “London and District Service Workers’ Union Local 220, Service Employees International Union”.
This is an application under section 57 of the Labour Relations Act for a declaration terminating bargaining rights. The respondent trade union is currently the bargaining agent for a unit of child care workers employed by the intervener employer. The employer operates residences in Kitchener, Waterloo and Guelph for young people in need of care.
The parties agree that the applicants have status to bring this application. They also agree that the application is timely.
Section 57(3) of the Act sets out the procedure the Board is to follow when considering an application under section 57:
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.
On the date of the filing of the application there were 46 employees in the bargaining unit. Prior to the terminal date fixed for the application, there were filed four statements in the form of "petitions" indicating that those who signed them no longer wished to be represented by the respondent trade union. There was also filed a similar document signed by a single employee. In all these documents were signed by a total of 27 bargaining unit employees. It follows that over 45 per cent of the employees in the bargaining unit had signified in a timely fashion that they no longer wish to be represented by the trade union. The only issue is whether the signatures of the employees can be accepted as being voluntary.
There is an onus on applicants seeking a declaration terminating bargaining rights to lead evidence relating to the origination of documents filed in support of the application as well as the circumstances under which employee signatures on the documents were obtained. If the evidence indicates that management had no actual involvement in the origination and circulation of a petition in opposition to the union, and that the manner in which the petition was circulated would not likely give rise to a reasonable concern among employees of management involvement or that a refusal to sign the document might be communicated to management, the Board will generally accept the petition as a voluntary expression of employee views. However, given the delicate nature of the employer-employee relationship, if the evidence indicates actual management involvement with the petition, or that it would be reasonable for employees to conclude that there likely had been some management involvement, or that management would likely become aware of any refusal on their part to sign the document, the petition will not be accepted as representing the voluntary wishes of employees.
As indicated above, the onus is on the applicants in a case such as this to lead the evidence to establish the voluntariness of employee signatures on a petition. If the required evidence is not led, the Board will not be in a position to conclude that the signatures are voluntary. The applicants in the instant case were put on notice that they would be required to lead such evidence. On February 17, 1986 the Board's Registrar sent letters to each of the applicants which contained the following caution:
I would draw your attention to section 73 of the Board's Rules of Procedure as set out in Form 2 enclosed herewith. Evidence of signification by employees that they no longer wish to be represented by a trade union must be in the form provided for in section 73 of the Board's Rules, and must be filed with the Board not later than February 25, 1986, the terminal date set for this application.
The applicant will be required to attend the hearing in order to present its case to the Board and to speak to such issues as may arise in connection with this application. Failure of the applicant to appear at the hearing of this case, either in person or through an authorized representative, will result in the rejection by the Board of the application.
It should be noted that 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.
[emphasis added]
No evidence was led as to the circumstances relating to the origination or signing of the statement containing the signature of a single employee. Nor were any reasons advanced as to why such evidence was not forthcoming. In these circumstances we are unable to conclude that the document reflects a voluntary signification of the wishes of the employee who signed it.
We were advised that employee signatures were collected on the four petitions by the applicants, namely Lyse Lebrun and Samuel Wilson, as well as by two other employees, David Shepherd and Sherri Lightfoot. Miss Lebrun, Mr. Shepherd and Mr. Wilson testified as to the circumstances under which they collected employee signatures. On the basis of their testimony, we have no hesitation in concluding that employees who signed a petition at the request of either Mr. Wilson or Mr. Shepherd did so voluntarily. The situation with respect to signatures collected by Miss Lebrun is less clear. Miss Lebrun is the assistant house manager at one of the employer’s residences. Although this is a position within the bargaining unit, Miss Lebrun does have some superyisory functions. Following a staff meeting at the residence where she is employed, Miss Lebrun asked the house manager, a managerial person excluded from the bargaining unit, to leave the room so that matters relating to the union could be discussed. The house manager left the room. Miss Lebrun then spoke in opposition to the union following which she asked the other employees present to sign a petition, which they did. Given Miss Lebrun's position and the events leading up to her discussion with the other employees about the petition, we have some concern that the employees might have concluded that Miss Lebrun was acting with the support of management. There is, however, no need to reach any definite conclusions with respect to this issue. Even if we assume that the signatures collected by Miss Lebrun reflected the voluntary wishes of the employees in question, this would not satisfy the requirements of section 57(3) in that Miss Lebrun, Mr. Wilson and Mr. Shepherd collected signatures from fewer than forty-five per cent of the employees in the bargaining unit.
As already indicated, we were advised that signatures were collected on one of the petitions by Miss Sherri Lightfoot. Miss Lightfoot was not in attendance at the hearing. Near the conclusion of the hearing the applicants produced a note claimed to be written by Miss Lightfoot in which she indicated that she had collected the signatures of staff at one of the residences and that the signatures were voluntary. The note also stated that Miss Lightfoot was unable to attend the hearing because she had not given the employer 30 days advance notice of her desire to be off. Counsel for the employer then advised the Board that Miss Lightfoot had requested a leave of absence for the day of the hearing without saying why she had wanted the leave, and that it had been denied by management since the request had not been made 30 days prior to the day in question. The employees who were in attendance at the hearing had apparently requested the day off ignore than 30 days previously. Counsel for the employer requested that the Board accept Miss Lightfoot's note as evidence of the voluntariness of the signatures on the petition or, in the alternative, schedule a continuation of the hearing so as to give Miss Lightfoot an opportunity to testify. The union strongly opposed both of these requests.
The note from Miss Lightfoot is a form of written hearsay. It was not made under oath and Miss Lightfoot was not available to be cross-examined by union counsel. In these circumstances we are unable to accept the note as establishing the voluntariness of any employee signatures.
The remaining issue is whether as proposed by employer counsel the hearing should be re-opened so as to allow the applicants to arrange for Miss Lightfoot's attendance. We believe not. The applicants were advised of their obligation to produce witnesses at the hearing who could testify with respect to the obtaining of signatures. The applicants could have ensured Miss Lightfoot's attendance at the hearing by issuing her a Summons to Witness. They did not do so, but rather appear to have been content to rely on Miss Lightfoot's own efforts to get time off to attend the hearing and, failing that, to rely on the note written by her. We believe the following reasoning of the Board in Baycrest Centre of Geriatric Care, [1976] OLRB Rep. Aug. 432 to be applicable to this case:
The Board policy with respect to adjournments has been capsulized in the Nick Masney case 11968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal, 70 CLLC 14,024) wherein the Board stated:
“…the Board's decision to deny the respondent's request for an adjournment was based on the Board's practice to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party i.e., where it is proven that a witness essential to the party's case is unable to attend because of serious illness...
The Board has held, in refusing to grant adjournments, that it is the responsibility of the complainant to do whatever is required to ensure that witnesses essential to its case are present at the hearing (see Weston Bakeries decision [1971] OLRB Rep. Jan. 30). The Board has further held that it is incumbent upon a party to properly prepare itself for a hearing which includes the obtaining and serving of the required summons (see: Agilis Corporation Limited decision [1971] O.L.R.B. Rep. Feb. 98)...
The purpose of a summons is to compel the attendance of witnesses at a hearing and as such it is an instrument which enables this Board to conduct its hearings at the appointed time and place and, more importantly, it is an instrument which provides a party with access to those witnesses who are essential to the presentation of its case. It is incumbent upon a party seeking the attendance of a witness(es) to avail itself of this instrument. Counsel can not decide against serving a potential witness, who had indicated that he will not attend, and then, in the face of the person's non-attendance, request an adjournment. If the Board (or any court for that matter) were to accede to such a request, it would be inviting manipulation of its procedure causing undue delay and consequent prejudice to parties appearing before it. The Board, therefore, restates that in the circumstance of this case it has no alternative but to deny the request for an adjournment.
- The evidence before the Board falls short of establishing that 45 per cent of the employees in the bargaining unit have voluntarily signified that they no longer wish to be represented by the respondent. The application is accordingly dismissed.
DECISION OF BOARD MEMBER R. J. SWENOR;
I would allow the hearing to be re-opened to allow the Board to hear the evidence of Miss Lightfoot regarding the voluntariness of employee signatures. I believe it is the Board's duty to try to determine the true wishes of the employees in the bargaining unit and to do so in an equitable manner. Equity is not served if we do not let Miss Lightfoot be heard, particularly since it was an action by her employer that prevented her from attending the hearing.
I must also comment on the case cited in paragraph 12 of the majority decision. The Board found (as cited in paragraph 2) that "Counsel cannot decide against serving a potential witness, who had indicated that he will not attend, and then, in the face of the person's non-attendance, request an adjournment". I think it important to note that the applicants were not represented by counsel. While I recognize that ignorance of their rights to issue a Summons to Witness should not automatically give them a second chance, my feelings are coloured by the difficulties faced by applicant/petitioners in obtaining counsel familiar with the Board's proceedings.
With respect to the reference (paragraph 9 of the majority decision) to the voluntariness of signatures obtained by Miss Lebrun, I do not believe this question should affect the hearing findings since the Board did not choose to deal with the question.