United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC v. Custom Foam Specialities Limited, 1986 CanLII 1517

[1986] OLRB Rep. December 1680

2024-86-R United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, Applicant, v. Custom Foam Specialities Limited, Respondent, v. Group of Employees, Objectors

BEFORE: G. T. Surdykowski, Vice-Chairman, and Board Members J. A. Rundle and B. L. Armstrong.

APPEARANCES: L. N. Gottheil, Reg Duguay and Bryan Senior for the applicant; Ian S. Campbell, Mary Ann Simon and David Germann for the respondent; Stuart L. Dollar for the objectors.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; December 9, 1986

1. This is an application for certification.

2. The name of the respondent is amended to: "Custom Foam Specialities Limited".

3. On the basis of the information before the Board, we find that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4. Having regard to the agreement of the parties, the Board finds that all employees of the respondent at Kitchener, save and except foremen, persons above the rank of foreman, and office and sales staff, constitute a unit of employees of the respondent suitable for collective bargaining.

5. In accordance with the Board's Rules of Practice the respondent employer filed the requisite lists of employees in the bargaining unit, together with specimen signatures for the employees on those lists. Having regard to the material filed by the employer and the finding of the Board with respect to the bargaining unit description, the Board is satisfied that there were 37 employees in the unit at the time that the application was made.

6. In support of its application for certification, the applicant union filed documentary evidence of membership in the form of cards, which consist of combination applications for membership and attached receipts. The union filed 25 such cards, each of which bears the name of an employee in the bargaining unit. These cards each contain the original signature of an employee and the receipts, which are countersigned by a witness (the collector), indicate that a payment of $1.00 has been made to the union in respect of membership fees within the six month period immediately preceding the terminal date for this application. The cards and money were collected by more than one person and the membership evidence is supported by a duly completed Form 9 Statutory Declaration which atttests 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 and, standing alone, demonstrates that the union has a level of support well in excess of that required by section 7(2) of the Act for certification without the necessity of holding a representation vote.

7. However, there were also filed with the Board 18 separate "statements of desire" or "petitions" (the terms are interchangeable) and each signed by one person and indicating opposition to the certification of the applicant. Seventeen of the individuals who names appear on the petitions are bargaining unit employees and of these, 7 had previously signed membership cards and paid $1.00 in respect of membership in the applicant trade union and were therefore members during the material times. As explained below, it is those 7 petitions, which purport to indicate that the employees signing have had a change of heart and no longer wishes 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 admissability 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.

8. 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 employment 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 evidenced 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) and 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 the manner that is consistent with the Legislative primacy of the membership evidence as the means by which employee wishes with respect to certification are determined.

9. The realities of labour relations are such that the 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 wish recognizes the validity of union membership cards but retains flexibility to seek the confirmatory evidence of a representation vote where employees file a timely petition which indicates a change of heart.

10. Unlike union membership evidence, petitions 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 of 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 they 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 applicant trade 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 bargaining unit employees 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.

11. The Board's treatment of petitions as described aforesaid has been explained in previous Board decisions (see for example, Unlimited Textures Company Limited, [19841 OLRB Rep. Jan. 138 at paragraphs 15, 16 and 17). 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 (see, Rule 73(5); Radio Shack, [1978] OLRB Rep. Nov. 1043; Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387; Lo Food Division of Lumsden Brothers Limited, [1983] OLRB Rep. May 676; Markham Hydro Electric Commission, [1984] OLRB Rep. Oct. 1481).

12. Paragraph 7 of the Form 6 Notice to Employees of Application for Certification and of Hearing posted by the respondent as required by the Board's Rules of Practice explicitly informs objecting employees that it is necessary to call witnesses who can testify from personal knowledge as to the circumstances of the origination and circulation of the petitions filed by them. In this proceeding, the group of employees, who were represented by counsel throughout, called one witness, Tim Kipfer, to give evidence on their behalf. Mr. Kipfer is a cutfoam operator, which position is within the bargaining unit described in paragraph 4 supra, who has been employed by the respondent since July 7, 1986. Not only were there substantial gaps in the evidence of Mr. Kipfer, but the reliability of the evidence that he was able to give is suspect because of his inability to recall accurately or at all things that happened a relatively short time ago (for example, his recollection of what transpired when he was interviewed for a job with the respondent is inconsistent with the evidence of Mr. Germann, whose evidence we accept as being correct). Mr. Kipfer had either no knowledge or no recollection of many significant details with respect to the petitions. He did not know where the petitions came from; where, how, or by whom they were prepared; or even who he got them from. Although he was certain that he was in fact present when each and every signature was obtained, Mr. Kipfer could not specifically recall being present when many of the signatures were obtained. When questioned with respect to the circumstances under which the signatures were obtained, he was unable to recollect when or where any of the signatures identified as P2, P3, PS, P6, P9, Pl0, P11, P12, P15, P17 and P18 (referred to in this manner to preserve the confidentiality of the identity of the persons who allegedly opposed certification in accordance with section 111(1) of the Act) were secured, or what, if any, discussions took place with, or in the presence of, any of those individuals before they signed the petition.

13. Mr. Kipfer did recall that the signatures of P1, P7, P8, P13, P14 and P16 were obtained at the conclusion of a meeting held at P13's home on October 24, 1986. However, Mr. Kipfer did not assist in arranging the meeting and stated that he did not know how or by whom it was organized, or what was said to employees to induce them to attend. With respect to the meeting itself, Mr. Kipfer could recall only that some people spoke in favour of the union and some against. According to him, that some benefits might be lost and that there might be a strike if the union's application was successful were points raised but the primary thrust of the meeting was to persuade employees to sign a petition in order to delay the matter so that more information could be obtained from both the union and the company and a representation vote be held. Mr. Kipfer had no other recollection as to what transpired at the meeting prior to the signing of the petitions noted above. Specifically, he could not recall any discussions with, or in the presence of, those employees who did sign a petition at the conclusion at the meeting. Finally, Mr. Kipfer testified that P4 signed a petition at that individual's apartment. Again he could not recall how he happened to be at P4's apartment or what discussions there were with, or in the presence of, P4 during the hour to hour and a half that he was there. He did recall, however, that Jim Bell, who he identified as his supervisor and who was referred to in the evidence of Mr. Germann, who gave evidence on behalf of the respondent, as being a "foreman", and Mike Nagles attended at P4's apartment with him.

14. Mr. Kipfer was able to tell the Board that Mr. Bell telephoned him on October 24, 1986, to discuss his participation in circulating the petitions and the meeting of October 24, 1986, that Mr. Nagles conducted the meeting, and that Mr. Bell and Mr. Nagles did a large proportion of the talking at that meeting. He also testified that both Mr. Bell and Mr. Nagles were present or in the immediate vicinity when all of the signatures on the petitions were obtained. It was also Mr. Kipfer's understanding that Mr. Nagles and Mr. Bell consulted and retained a solicitor, Mr. Dollar, with respect to the matter shortly after the Form 6 Notice to Employees was posted by the respondent.

15. Because Mr. Kipfer had only been employed by the respondent for a relatively short time, he did not know many of his fellow employees at the time that this application was made. Indeed he admitted that he could not be sure that all of the persons who attended the October 24, 1986 meeting were bargaining unit employees. According to Mr. Kipfer, and counsel for the objecting employees, it was because he was new, that Messrs. Nagles and Bell selected Mr. Kipfer to be what can be characterized as the "front man" for the petitioners in this proceeding. On the evidence, it is abundantly clear that it was Messrs. Nagles and Bell who were the persons instrumental in originating and circulating the petitions before the Board. It was these two individuals who orchestrated the alleged opposition to this application for certification by recruiting Mr. Kipfer; by making arrangements for the collection of signatures, including consulting and retaining counsel, and arranging for and conducting a meeting of employees for the purpose of obtaining signatures on petitions; by being present at, or in the immediate vicinity of, the signing of each petition; and by taking custody of the signed petitions from Mr. Kipfer after all of the signatures had been obtained. Notwithstanding the significant roles played by these two individuals, the Board did not have the benefit of testimony from either of them, even though Mr. Nagles was present throughout the proceedings. Consequently, the Board is left with no evidence regarding the origination of the petitions and very little evidence of the circumstances surrounding the signing thereof. There is therefore insufficient evidence of the origination and circulation of the petitions before us to satisfy the onus on the objecting employees to establish the voluntariness of any of the 18 petitions. In arriving at our conclusions we find it unnecessary to consider the issue of Jim Bell's actual or perceived managerial status as a basis for impugning the reliability of the petitions as an indicator of employee wishes.

16. In the result, the Board is not prepared to give any weight to the petitions as indicators of the wishes of those union members who signed one. The Board is satisfied that the applicant trade union has demonstrated the required level of membership support to warrant certification without the necessity of holding a representation vote.

17. 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 that the application was made were members of the applicant on October 27, 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.

18. A certificate shall issue to the applicant.

DECISION OF BOARD MEMBER J. RUNDLE;

1. Based on the evidence placed before the Board, I concur with the result of the majority, however, I feel it worthwhile to set out, in general terms, the tests the Board requires to be meticulously followed in order to have a petition validated so as to secure a secret vote:

2. the person circulating the petition cannot discuss it with the employer;

3. the person circulating the petition should not obtain signatures on company property;

4. the person circulating the petition should not obtain signatures within sight of a member of management;

5. every signature in the petition must be witnessed and such witness must testify before the Board on matters relating to the preparation of the petition, the obtaining of signatures arid the circulation of the document in question;

6. the petition must not leave the person's hand who circulates it - if it does, then the person it is given to must appear before the Board to give evidence;

7. the person circulating the petition must not get time off from work in order to mail the petition by registered mail (the petition must be sent by registered mail to the Board);

8. the person circulating the petition must not arrange for time off with pay to attend the Board hearing;

9. should the person circulating the petition have any member of management sign it for whatever reason (even if the member of management believes he or she is in the bargaining unit) then all signatures secured subsequent to that of the member of management are disregarded by the Board, and;

10. the person circulating the petition is subjected to rigorous cross-examination by the Board on questions pertaining to the origination, preparation and circulating of the petition.

11. The foregoing paragraphs may give the petitioners some indication of the technicalities which they have to meet in order for a petition to succeed.