[1986] OLRB Rep. October 1435
1609-86-R United Food and Commercial Workers International Union, Applicant, V. Skelhorns Bus Line Limited, Respondent, v. Group of Employees, Objectors
BEFORE: G. T. Surdykowski, Vice-Chairman, and Board Members J. Rundle and R. R. Montagte.
APPEARANCES: Archie Duckworth, Sharon Slaney and Sandra Ouellet for the applicant; Peter M. Whalen, C. Macintosh and G. Hamm for the respondent; Victoria Watson and Reginald Watson for the objectors.
DECISION OF THE BOARD; October 27, 1986
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties at the hearing of this matter, the Board finds that all employees of the respondent at Petawawa, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor and office staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
In support of its application, the trade union has filed documentary evidence on behalf of 14 of the 18 employees in the bargaining unit. This documentary evidence took the form of membership cards, which include a combination application for membership and attached receipt. These cards are each signed by the employee and the receipts, which are countersigned by a witness (the collector), indicate that a payment of one dollar has been made to the union in respect of it’s membership fees. This documentary evidence is supported by a duly completed Form 9 Statutory Declaration which attests to the regularity and sufficiency thereof. In short, the form and content of the membership evidence are consistent with the requirements of section 1(1)(l) of the Act aiid, standing alone, demonstrates that the union has a level of membership support well in excess of that required by section 7(2) of the Act for certification without the necessity of holding a representation vote.
However, there were also filed with the Board 14 separate "statements of desire" or "petitions" (the terms are interchangeable) each signed by one person and indicating opposition to the certification of the applicant. Twelve of the individuals whose names appear on the petitions are bargaining unit employees and of these, eight had previously signed membership cards and paid a dollar in respect of membership in the applicant trade union and were therefore members during the material times. As explained below, it is those eight petitions, which purport to indicate that the employees signing them have had a change of heart and no longer wish to support the application for certification, that might be relevant to the Board's considerations. It was readily apparent that if a sufficient number of the possibly relevant petitions were found to be voluntary, which is the litmus test of relevance applied by the Board, they would raise sufficient doubt concerning the amount of continued support enjoyed by the applicant to prompt the Board to, in accordance with its usual practice, exercise its discretion to order a representation vote to resolve the matter. Finally, the applicant filed one "revocation" or reaffirmation of membership in the union. This signature was that of a bargaining unit employee who had first become a member of the union, then signed a petition, and still later signed the revocation. Whether or not this document is relevant to the Board's considerations depends upon the Board's view of the eight possibly relevant statements of desire.
As we have already intimated, the object in certification proceedings is to determine whether a majority of the employees found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their dealings with their employer. The Labour Relations Act provides that the certification of trade unions in this province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of an application. The Board does not inquire into opinions about the virtues of union membership except as evidence by that documentary membership evidence and any timely petitions filed with respect to an application. In Ontario, as in most Canadian jurisdictions, the representation vote exists as a residual mechanism for ascertaining the wishes of bargaining unit employees in cases where either the applicant union does not have the support of more than fifty-five percent of the bargaining unit employees which is necessary for outright certification under section 7(2) of the Act (but does have the support of not less than forty-five percent of them) or where the circumstances are such that the Board sees fit to require such a vote to be held notwithstanding that there is documentary evidence showing membership support in excess of fifty-five percent. The Board's discretion in that respect must be exercised in a manner which is consistent with the legislated primacy of the membership evidence as the means by which employee wishes with respect to certification are determined.
The realities of labour relations are such that employees can and do change their views as to the desirability of trade union representation. In recognition of this, the Board has developed a procedure which recognizes the validity of union membership cards but retains the flexibility to seek the confirmatory evidence of a representation vote where employees file a timely petition which indicates a change of heart. Similarly, revocations or "counter petitions" are admitted by the Board to show a further change of heart and thereby nullify one or more signatures on a petition.
Unlike union membership evidence, petitions (and revocations) are not directly or precisely regulated by the Act. There is no statutory definition equivalent to section 1(1)(l), nor is there any requirement that the act of signing be confirmed either by monetary payment or otherwise. There is also no statutory declaration analogous to Form 9 (which attests to the regularity and sufficiency of membership evidence). However, the existence of such statements is contemplated by sections 103(2)(j) and 111(1) of the Act and Rule 73 of the Board's Rules of Procedure. The Board has a long established practice of accepting such petitions and exercising its discretion to order a representation vote where the petitions are voluntary and contain a sufficient number of signatures of persons who had previously signed union membership cards to create a doubt as to the actual level of support enjoyed by the union. The Board must be satisfied that persons indicating an apparent change of heart did so voluntarily and without being motivated by a perceived threat to their job security, a concern that the employer is involved in the petitions, or that a failure to sign could result in reprisals. It is only those persons who first signed union membership cards and subsequently signed petitions whose signatures are relevant to the Board's considerations. This is because employees for whom no membership evidence is filed are treated as being opposed to the application. Consequently, the signature of a non-union member on a petition can add nothing to the assessment of the support enjoyed by the union applying for certification.
The onus of establishing that a petition is voluntary is on the employees objecting to certification. To do so, they must call witnesses to give evidence, based on personal knowledge and observation, relating to the circumstances of the origination and preparation of the petition, and the manner in which each signature was obtained. The cases are legion in which a failure to appear and give satisfactory firsthand evidence regarding the origination and circulation of a petition has resulted in its rejection. Each and every signature on a petition must be identified and the circumstances under which it was obtained must be recounted by a person having personal knowledge thereof. Where such evidence is not presented, the signature may, and likely will, be discounted. In addition, the circulation of petitions must be free from the actual or perceived influence of management. Consequently, the Board will discount the signature of any employee who is or is perceived to be managerial. Similarly, where managerial personnel or persons who are perceived as having a greater proximity to management than other employees, are involved in originating or circulating a petition, it is difficult to escape the conclusion that the employees would reasonably have perceived the petition to be supported by the employer and its reliability as a gauge of employee desires will be destroyed (Rule 73(5); Radio Shack [1978] OLRB Rep. Nov. 1043; Baltimore Air-coil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387; Lo Food Division of Lumsden Brothers Limited, [1983] OLRB Rep. May 676).
Revocations are also subject to the test of voluntariness but because such documents are not normally associated with management different considerations apply. Accordingly, in the case of a revocation the question is whether there has been any threat, intimidation, undue influence, misrepresentation or other improper conduct which affects its voluntariness (see Frito-Lay Canada Ltd., [1981] OLRB Rep. May 538).
In this proceeding, the group of objecting employees or "petitioners" were represented by Victoria Watson, herself a bargaining unit employee, and her husband Reginald Watson, whose name does not appear on the employer's lists. There is no doubt that Mr. and Mrs. Watson came to the Board in good faith and that their views are honestly held. In addition, notwithstanding their admitted lack of legal training, they conducted themselves respectably throughout the proceedings. However, only Mrs. Watson testified with respect to the petitions and though she gave her evidence forthrightly and without hesitation, there was evidence that she could not give. What she could not say turned out to be as important as what she did say because the Board was left without evidence essential to establish the voluntariness of all but four of the petitions. It is the lack of this essential evidence that is fatal to the case that the objecting employees have tried to build. In arriving at our conclusions we have taken into account that the objecting employees chose not to avail themselves of their right to counsel. However, we cannot agree with counsel for the respondent that the gaps in the evidence resulting from the Watsons' lack of experience in such matters should somehow be overlooked.
Persons involved in proceedings before the Labour Relations Board have a right to appear before it with or without counsel. The Board recognizes the difficulties that face those persons who appear without counsel and normally affords such persons a somewhat greater latitude in the manner in which they conduct their cases. However, the law applicable to issues raised in a proceeding before the Board does not depend upon whether or not a party before it chooses to retain counsel. Choosing to neither retain counsel nor otherwise inform itself does not relieve a party of the obligation to prove its case. It has often been said that ignorance of the law will excuse no one from his obligations under it. Consequently, the considerations of onus, the relevant tests, and the law applicable to the Board's consideration of petitions are apposite equally to cases where a party appears with counsel and those where a party appears without counsel.
In any event, Mrs. Watson's evidence indicates that she did in fact have sufficient information to enable her to know the case that had to be made for the group of objecting employees to succeed in their quest for a representation vote. She testified that she had obtained the Ministry's of Labour Guide to the Labour Relations Act which states, among other things:
How do you prove that a statement of desire does not have management support?
If the statement of desire will affect the certification process by causing the Board to order a representation vote, the Board will call upon the objecting employees to prove that the statement is voluntary.
A representative of the signing employees must appear and call witnesses to testify under oath about how the statement of desire originated (whose idea it was, who drafted it and where) and about the manner in which each of these signatures was obtained. This means that evidence must be given about the circumstances under which each employee signed the statement of desire by someone who is present at the time....
The persons who present the evidence at the hearing will be questioned by the Board, and may be questioned by the representatives of the union and the employer. If at the end of the inquiry the Board is not satisfied that the statement of desire is a voluntary expression of the employees who signed, it will be disregarded.
[emphasis in original]
In addition, the Form 6 Notice to Employees of Application For Certification And of Hearing which was posted by the respondent employer states, at paragraph 7:
Any employee, or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5 may attend and be heard at the hearing in person or by a representative. 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.
EXPLANATORY NOTE: Where employees fail to attend in person or by a representative or to testify or produce witnesses to testify as provided in paragraph 7 above, the Board normally does not accept the statement of desire as casting doubt on the evidence of membership filed by the applicant.
Before dealing with the evidence, we find it appropriate to comment on one further evidentiary matter. After Mrs. Watson had finished giving her evidence, the Board inquired of her and Mr. Watson whether they understood what the group of objecting employees had to establish, namely the voluntariness of the petitions, and whether they had any further evidence to offer or witnesses to call. Mr. Watson indicated that they had no further witnesses but that they did have a letter from one of the petitioners (identified throughout as P11) who Mr. Watson said was unable to attend the hearing of the matter. The Board indicated that absent an agreement of the parties, evidence relating to the matters in issue normally had to be presented through the oral testimony of a witness. Upon being advised of this hearsay difficulty, Mr. Watson withdrew the letter and said nothing further about it. Nor did anyone else say anything at the time. This is noteworthy only because during argument Mr. Whalen, counsel for the respondent employer, indicated that, a though he knew nothing of the contents of the letter, he was "concerned" that the Board had not admitted this letter at least for the limited purpose of ascertaining whether it indicated that an a adjournrnent was in order to enable the filling in of what he felt were gaps in the petitioners’ evidence. After noting that the petitioners had not raised the issue and that counsel had neither objected nor indicated any "concern" at the time that the matter had arisen, the Board asked counsel whether he was in fact now making an objection. He indicated that he was not. At no time, before or after counsel raised his "concern" did the objectors either request or otherwise indicate any need for an adjournment.
In accordance with the Board's usual practice in such cases, the Board conducted the initial examination of Mrs. Watson. At the conclusion of the Board's inquiry, the parties were given an opportunity to ask questions and present their evidence. In order to preserve confidentially concerning the identity of the persons who allegedly opposed the certification of the applicant ill accordance with section 111(1) of the Act, the signatures on the petitions are referred to by numbers throughout the proceedings.
Mrs. Watson has been an employee of Skelhorns Bus Line Limited for approximately one year. She is within the bargaining unit found by the Board to be appropriate for collective bargaining. She testified that it was the idea of another bargaining unit employee (P11) to oppose this application for certification. Mrs. Watson obtained information with respect to "statements of desire", including the wording thereof, from the Guide referred to above. Two of the petitions were handwritten, one by Mrs. Watson and one by P14 in Mrs. Watson's presence. The rest were typed, one by Mrs. Watson and the other by P11. All but P1 were mailed to the Board by Mrs. Watson.
Petitioner P1 approached Mrs. Watson on the employer's premises during working hours and inquired about signing a statement in opposition to the union. Mrs. Watson wrote out such a statement on the spot, P1 signed it, and left with it. This document was subsequently mailed to the Board, presumably by P1. Petitioners P3, P7 and Pl0 signed identical typewritten petitions in front of Mrs. Watson. However, Mrs. Watson's involvement was restricted to witnessing the person's signature on the petition and then mailing them to the Board. Both P7 and Pl0 had been previously approached by P9 with respect to their petitions and P9 had made the arrangements for Mrs. Watson to attend at the homes of those individuals in order to collect their signatures. Similarly, P3 had been approached by either P9 or P11 who also arranged for the signing. Mrs. Watson l2ad no material discussion of substance with any of these petitioners to the extent that all she said t P7 was, "You know why I am here", or words to that effect. The petitions of P2, P6, P8, P9, 111, P12, and P13 were not signed before Mrs. Watson so we are left with no evidence of the circumstances under which they were signed.
It is clear from the evidence that P11 played a significant role in the origination of the petitions. That individual was also involved in their circulation and the collection of signatures. In addition, the evidence establishes that petitioner P9 was instrumental in collecting signatures on various of the petitions. In at least three possible relevant cases it was that latter individual's approach that led to the signatures actually being obtained. The Board has not had the benefit of t e evidence of either of these significant individuals and we are left without sufficient evidence of origination and circulation to establish the voluntariness of 10 of the petitions. We have no way of knowing how any of these ten came to be signed or whether or not there was any impropriety involved. Consequently, there is insufficient evidence before us to satisfy the onus on the objecting employees to establish the voluntariness of the 10 petitions that P9 and P11 were directly involved in collecting.
In the result, we are not satisfied that petitions P2, P3, P6, P7, P8, P9, PlO, P11, P12, and P13 are voluntary. In arriving at our conclusion we find it unnecessary to consider the issue of P9's actual or perceived managerial status which was one of the bases upon which the applicant sought to impugn the petitions. Petition P1 is conceded by the applicant to be voluntary and we are satisfied that P4, PS and P14 are voluntary.
Of the four voluntary petitions, only two were signed by bargaining unit employees who had previously signed union membership cards. Therefore only two of the petitions that were filed are relevant to the Board's considerations and their existence does not cast sufficient doubt upon the membership evidence submitted by the applicant to prompt the Board to exercise its jurisdiction under section 7(2) of the Act to direct that a representation vote be held notwithstanding that the trade union has filed membership evidence representing in excess of fifty-five percent of the employees in the bargaining unit. This conclusion makes it unnecessary for us to deal further with the revocation.
The Board is therefore satisfied on the basis of all the evidence before it, that more than fifty-five percent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on September 15, 1986, 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 Act.
A certificate shall issue to the applicant.
CONCURRING OPINION OF BOARD MEMBER J. RUNDLE;
Based on the evidence placed before the Board, I concur with the result of the majority. Such result is consistent with Board practice.
However, it appeared to me that the objecting employees did not really understand what would be expected of them before they arrived at the hearing. This may have resulted from a lack of resources relative to those possessed by the trade union and the employer, a disparity which is not uncommon when employees appear before the Board either individually or as a group.
The central purpose of removing the Board from the judicial system was the expectation that people could appear before the Board without representation and not find themselves prejudiced. This case is demonstrative of the fact that the Board's certification procedures, more particularly the Board's requirements vis-a-vis statements of desire (petitions) have made that original objective particularly difficult.
The Board is in the process of revising the notice and information forms relating to applications for certification. Hopefully the revisions will clarify for objecting employees what is required of them.