[1986] OLRB Rep. January 185
1949-85-R Beryl Watts, Applicant, v. Canadian Union of Operating Engineers & General Workers Union Local 101, Respondent, v. Yonge-Eglinton Centre Management Services, Intervener
BEFORE: Ian C. Springate, Alternate Chairman, and Board Members R. J. Gallivan and C. A. Ballentine.
APPEARANCES: Beryl A. Watts on her own behalf; Robert Sleva and Claude Duchesneau for the respondent; Mark Contini and John Croutch for the intervener.
DECISION OF IAN C. SPRINGATE, ALTERNATE CHAIRMAN AND BOARD MEMBER R. J. GALLIVAN; January 20, 1986
The style of cause of this application is amended to show Beryl Watts as the applicant.
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 the following unit of employees, namely:
All employees of Yonge-Eglinton Centre Management Services in the Municipality of Metropolitan Toronto save and except supervisors and superintendents, persons above the rank of supervisor and superintendent, office and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
The parties agree that the applicant, Mrs. Beryl Watts, is an employee in the bargaining unit. They also agree that this is a timely application.
In support of her application, Mrs. Watts filed what appeared to be a photostated copy of a statement in the form of a "petition". The document is headed up
"I the undersigned wish to have the General workers Union decertified"
There then follows the signatures of 44 individuals. In testifying before the Board, Mrs. Watts stated that there had not in fact been an original document in the form of a petition signed by a number of individuals. Rather, the individuals in question had each signed a separate sheet of paper which contained the heading quoted above, one signature per sheet. Mrs. Watts testified that she had then arranged and copied the separate sheets of paper so as to produce a single document. Mrs. Watts testified that she no longer had the original sheets of paper in her possession because she had forwarded them to the head office of the respondent trade union. No evidence was led by the trade union to refute Mrs. Watts' claim.
Normally the Board would not be prepared to accept a document purporting to express employee wishes where the document filed with the Board is not, in fact, the document actually signed by employees. However, the oral evidence in the instant case is that individuals in question each signed a separate sheet expressing a desire to have the bargaining rights of the trade union terminated, and that these documents are now in the possession of the trade union. The trade union was in a particularly unique situation to rebut that evidence if it were not true, but did not do so. This being the case, we are satisfied that the individuals whose signatures appear on the statement filed with the Board did in fact express a desire to have the union's bargaining rights terminated.
On the date of the filing of the application there were 53 employees in the bargaining unit. The signatures of 32 of these employees appear on the document filed in support of the application.
Mrs. Watts testified that she approached all but at most four of the individuals who signed a sheet in opposition to the union. Another employee by the name of Dorothy Wood approached the other individuals. Ms. Wood did not testify at the hearing concerning the circumstances under which the persons she approached had signed in opposition to the union. In these circumstances, we are unable to conclude that the application has the voluntary support of the employees who signed at Ms. Wood's request. Nevertheless, we do have evidence concerning the circumstances under which the other employees signed.
Mrs. Watts testified that she prepared all of the documents signed by the employees, and apart from the employees approached by Ms. Wood, she alone approached employees to obtain their signatures. According to Mrs. Watts she collected the signatures at work, primarily when employees were on their breaks. She testified that she collected the signatures as privately as possible, and was positive that no supervisor had been about when employees signed. Mrs. Watts further testified that at no point had she discussed her activities with members of management. The union led no evidence to rebut or contradict the evidence given by Mrs. Watts. In light of the evidence given by Mrs. Watts, we are satisfied that those who signed a statement in opposition to the trade union when approached by Mrs. Watts to do so, did so voluntarily.
Having regard to the above, the Board is satisfied that not less than 45 per cent of the employees in the bargaining unit at the time the application was made have voluntarily signified in writing that they no longer wish to be represented by the respondent union as of November 19, 1985, 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 making such determination.
A vote will be taken among employees in the bargaining unit. Those eligible to vote are all employees in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
Voters will be asked to indicate whether or not they desire to be represented by Canadian Union of Operating Engineers & General Workers Union Local 101 in their employment relations with Yonge-Eglinton Centre Management Services.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I dissent from the majority decision for two reasons.
Firstly, I believe the petition in the form it was submitted should be rejected. It is established Board practice that statements of desire must be in written documentary form. The onus of producing this documentation and of satisfying the Board of its voluntariness is clearly on the applicant. As the majority notes in paragraph 6, the Board does not normally accept a document other than the one actually signed by employees. Having conceded that, the majority relies on oral testimony to cast on the union an onus that it otherwise does not and should not have. It is my position that it is the applicant's responsibility to produce the documentation required to support the application. Having failed to do so, the application should have been dismissed.
Mrs. Watts, the person who organized the petition against the union, through her own evidence appeared to have a free and unrestricted hand to circulate separate documents on company property. She indiscriminately handed out the separate sheets of paper to anyone and everyone, resulting in 44 individuals signing the document, 12 of which were not in the bargaining unit. It is very difficult for me to believe that management would not have been aware of Mrs. Watts' activities. Even if management actually did not become aware, it is a great probability that the employees would have a perception that management was either supporting this petition, or would become aware of who signed and who did not sign the petition. In the circumstances, the Board cannot be satisfied that the expressions made in the petition were made voluntarily.
The union in this case advised the Board it was interested and desirous of continuing to be the bargaining agent of the employees in the bargaining unit, but it would need the assistance of first contact arbitration legislation to obtain a satisfactory first agreement for these employees. It has been anxiously awaiting passage of such legislation.
In all these circumstances, for the reasons stated above, I would have rejected the petition and would not have placed the union's bargaining rights in jeopardy.