[1986] OLRB Rep. November 1607
1901-86-R Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant, v. Twistex Yarns Inc., Respondent, v. Group of Employees, Objectors
BEFORE: V. Solomatenko, Vice-Chairman, and Board Members G. O. Shamanski and I. Sarra.
APPEARANCES: Fernando DaSilva for the applicant; Joe Ariagno for the respondent; Greg Cullen and Ann Wagar for the group of employees.
DECISION OF THE BOARD; November 12, 1986
The name of the respondent is amended to read: "Twistex Yarns Inc."
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Cornwall, Ontario, save and except supervisors, persons above the rank of supervisor, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
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 respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 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 said Act.
The membership evidence demonstrates that the union has a level of support in excess of that required under the Act for certification without having a representation vote taken. However, a statement of desire (hereinafter referred to as the "petition") to oppose the union's application was filed in a timely fashion pursuant to the Board's Rules of Procedure. The petition consists of a single document dated October 14, 1986, signed by six individuals. The Board is satisfied that this document on its own does not contain a sufficient number of signatures of those employees who had also signed union membership cards as would cause the Board to exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote, even if satisfied that the document represented a voluntary expression of those signing it. Therefore, the Board would not normally inquire into the voluntariness of that petition and the applicant would be entitled to certification without a representation vote.
However, three additional documents in connection with this application were placed before the Board on the day of the hearing in the matter on October 24, 1986. The first of these documents was an undated typed statement signed by four individuals stating that the original statement of opposition to the union was stolen and disposed of by an unnamed employee on October 14, 1986. It seems this original statement, which preceded the petition that was filed in a timely fashion herein, had been posted for three or four days in the mill on a bulletin board to which all employees and members of management had access. The Board was advised that it contained six or seven signatures before it was posted and eight or nine at the time it was stolen.
The other two documents placed before the Board purported to be statements of opposition to the union. One was typed and contained two signatures, the other was handwritten and contained eleven signatures. Both documents were undated, but the Board was advised that the signatures therein were obtained between October 15th and 20th, that is, subsequent to the terminal date. The employees objecting to the union are requesting that the Board accept these documents as evidence of opposition to the union for purposes of this application. If the Board were to accept these latter two documents, there would be a sufficient overlap of signatures of those employees who had signed both these documents and union membership cards and, if satisfied as to their voluntariness, the Board would exercise its discretion to order a representation vote.
Section 73(l) of the Board's Rules of Procedure provides:
Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,
(a) is accompanied by,
(i) the return mailing address of the person who files the evidence, objection or signification, and
(ii) the name of the employer; and
(b) is not filed later than the terminal date for the application.
[emphasis added]
Furthermore, the "Form 6 - Notice to Employees" (Green Sheet), which was posted on the employer's premises on October 8,1986 in the instant application, stipulates that a statement of desire will not be accepted by the Board if it is not either received by the Board or mailed by registered mail no later than the terminal date.
By asking the Board to accept the documents presented on the date of the hearing, the objecting employees herein are in essence requesting the Board to extend the terminal date, which is October 15, 1986 for purposes of this application. The Board has the discretion to vary or extend the terminal date pursuant to section 82(2) of the Rules of Procedure. Although the Board does not exercise that discretion lightly, it also does not use a rigid formula for determining whether there has been sufficient notice given with respect to any application. Instead, it will consider the merits of each request for an extension in the context of the circumstances relevant to the request: (see, generally, Hostess Food Products Limited, [1980] OLRB Rep. May 710 and Kilean Lodge Incorporated, [1977] OLRB Rep. April 240).
Much of the Board's jurisprudence in this regard has been directed to the question of whether there was sufficient time between the posting of the Form 6 Notice and the terminal date. In the instant application, however, there was no allegation that there was inadequate time between the two dates to provide employees with an opportunity to file a petition or statement of desire. In fact, the Board is advised that the stolen document had been affixed to the bulletin board for three or four days. In essence, the sole purpose of trying to file these documents at this time is to counteract the loss of that first document which would have been presented as a statement of desire to oppose the union. Regardless of the improper actions of the person who removed the document from the bulletin board, the objecting employees must accept the consequences of their own actions in this instance.
It is really a matter of common sense that to leave a document of this nature unattended on a bulletin board is to do so at one's own peril. From the more technical aspect of the Board's requirements of proof of voluntariness, to relinquish custody of a statement of desire or petition in this manner fatally taints its voluntariness. The very circumstances of the loss of the document demonstrate that the objecting employees were no longer in a position to provide direct evidence either as to the custody and control of the document throughout its entire period of circulation or as to the circumstances surrounding each signature therein. In essence, to grant an extension of the terminal date herein would be tantamount to giving the objecting employees an opportunity to start afresh in their efforts to oppose this application in circumstances wherein they were the authors of their own misfortune. Such is not an appropriate reason for the Board to exercise its discretion to extend a terminal date.
The Board hereby confirms its oral decision at the hearing that it declines to exercise its discretion to extend the terminal date for this application and therefore does not accept into evidence the statements of desire which were presented on the day of the hearing.
A certificate will issue to the applicant.