Ontario Labour Relations Board

[1986] OLRB Rep. January 72

1904-85-R London and District Service Workers' Union, Local 220, S.E.I.U., A.F.L., C.I.O., C.L.C., Applicant, v. Conference Cup Co. Ltd., Respondent, v. Group of Employees, Objectors

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members F. C. Burnet and K Rogers.

APPEARANCES: R. Jacques, Wendy L. Braunton, Nadine Oakley and David A. Brunsdon for the applicant; John L. Getlife and G. Collette for the respondent; Bruce MaCauley and Jim Fitzgerald for the objectors.

DECISION OF R. O. MacDOWELL, VICE-CHAIRMAN AND BOARD MEMBER K. ROGERS; January 16, 1986

1. This is an application for certification.

2. The correct name of the respondent is Conference Cup Co. Ltd., not Conference Cup. Co. Limited as specified in the application. The style of cause is therefore amended to reflect the proper name of the respondent employer.

3. There is no dispute, and the Board finds, 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 further finds that the unit of employees appropriate for collective bargaining consists of "all employees of the respondent in London, Ontario, save and except assistant plant managers, persons above the rank of assistant plant manager, office, clerical and sales staff".

5. Initially there was some dispute about the precise composition of the above-noted bargaining unit. The respondent employer took the position that six of the individuals named on the "employee list" accompanying its reply, were not "employees" within the meaning of the Act because they exercised managerial functions (see section 1 (3)(b) of the Act). These persons were Bob Connell, "maintenance supervisor", Bruce Macauley, "production control supervisor", Larry Paterson, "production supervisor", and Rob Bakelaar, Dave Brundson, and Ron Taylor, all described as "shift supervisors". However, in discussions prior to the hearing, the parties agreed that Connell (maintenance supervisor), Macauley (production control supervisor), and Paterson (production supervisor) were properly considered part of the managerial team and excluded from the bargaining unit pursuant to section 1 (3)(b) of the Act; while the shift supervisors, Bakelaar, Brunsdon and Taylor, were "lead hands" who exercised certain supervisory and co-ordinating functions but not to such a degree as to require their exclusion from the bargaining unit. Given the difficulty in defining a precise line between those who are entitled to statutory bargaining rights and those who are not, the Board is not disposed to go behind the parties' agreement. (However, see generally: J. Sack, Q.C. and M. Mitchell; Ontario Labour Relations Board Law and Practice, (1985) Buttworths at pp. 79-94.)

II

6. Despite the difficulties which a layman may have in understanding the certification process, its outlines are really quite simple. The Board first determines the description of the appropriate bargaining unit and the number of employees in that unit. The Board then determines how many of those employees have become union "members" as defined in the Act (i.e., they have applied for membership and paid at least $1.00 in respect of membership fees). These are the "yes votes" - to adopt, for the moment, the terminology used by some of the witnesses. Anyone who has not been approached or has not signed a card (etc.) is automatically treated as a "no vote" regardless of his/her actual views concerning the desirability of trade union representation. If the union enjoys the support of more than fifty-five per cent of the employees in the bargaining unit (a clear majority), the statute provides that it can be certified without recourse to a representation vote. If the union cannot obtain a threshold level of forty-five per cent support, its certification application will be dismissed. If the union's claim to majority support is questionable because it has obtained the support of more than forty-five per cent, but less than fifty-five per cent of the employees in the bargaining unit, the Board generally directs the taking of a representation vote. Thus, the typical certification application is largely a matter of arithmetic. Problems arise only when someone who has unequivocally indicated that he was a union supporter makes a timely written representation that he has changed his mind. That is the problem presented in this case.

7. In support of its application for certification, the trade union has filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees in the above-mentioned bargaining unit. This documentary evidence took the form of membership cards, which include a combination application for membership and an attached receipt. These cards are each signed by the subject employee, and the receipts are countersigned by a witness ("the collector") and indicate that a payment of $1.00 has been made to the union in respect of its membership fees. The $1.00 payment is in the nature of "consideration" and confirms the act of signing.

8. The documentary evidence of membership is supported by a properly completed Form 9, Statutory Declaration, attesting to its regularity and sufficiency. There is no allegation of any irregularity in the form of this documentary evidence, nor do the parties allege any impropriety in the manner in which it was solicited. The employer and the objecting employees do not call into question the "voluntariness" of these individual acts of signing or suggest that, by so doing, the employees were not indicating their desire to be represented by the applicant union. The form and contents of the union's documentary evidence of membership are consistent with the requirements of section l(l)(l) of the Act and, as well, meet the form and time limits prescribed pursuant to section 103(2)(j) of the Act. This documentary evidence, standing by itself, 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 recourse to a representation vote.

9. However, there are also filed with the Board a number of documents signed by employees indicating that they wish to oppose the certification of the applicant union. These documents were filed prior to the terminal date. Four of the opposition documents bore the names of individuals who had previously signed membership cards and paid $1.00 in respect of membership fees and, therefore, were "members" of the union within the meaning of section 1 (l)(l) of the Act. These individuals had had a purported change of heart, and now allegedly no longer wished to support the applicant's certification. If this change of heart was a voluntary one so that the union's documentary evidence of membership did not reflect the employees' subsequent wishes, the Board, in accordance with its usual practice, would ordinarily exercise its discretion to direct a representation vote to resolve the question of the applicant's right to certification. In essence, this is the course of action urged upon us by the representative of the objecting employees. They argue that, in the circumstances of this case, the formalities required by the Act and the Board (writing, signatures, consideration, witnesses), are still insufficient to indicate the employees' "real intentions" - even though in a commercial context they might be quite sufficient to create binding and enforceable contractual obligations. They urge the Board to disregard what the employees may have wanted then and to consider what (i.e. as at the terminal date) they later indicated. They urge the Board to canvass the employees' wishes by means of a representation vote.

III

10. The system of certification prescribed in Ontario by the Labour Relations Act rests primarily upon an assessment of the union's membership support based upon an examination of its documentary evidence of membership. Upon showing the requisite membership support, the union is "certified" or granted a licence to bargain on behalf of a group of employees - subject, of course, to their right to file a timely application terminating bargaining rights.

The Board does not solicit viva voce opinions about the virtues of trade union representation (see Rule 73(2)), nor, in this jurisdiction, is a representation vote the primary vehicle for achieving the right to represent employees. That right depends upon the solicitation of a sufficient number of membership cards authorizing the union to act as the employees' bargaining agent, and to protect employees from possible employer reprisals the anonymity of the union supporters is preserved. That is the way it has been for more than thirty years, and doubts about how the Board should go about its task have frequently been resolved by amending the statute (as, for example, to resolve the question of what is a "union member" and the "question" the Board was to ask itself in this regard which prompted section 1 (l)(l)). There is now an elaborate statutory and regulatory framework governing union membership evidence, as the Board has sought to apply sections l(l)(l) and 103(2)(j) to the special circumstances of particular cases - as, for example, where the one dollar payment is loaned to a potential union supporter, or where the card is not properly witnessed, or where the card is valid on its face but has been obtained through misrepresentation or intimidation, or where there is a problem respecting one or a few membership documents but not the others, etc. Representation votes are a residual mechanism resorted to where the union cannot demonstrate a "clear majority" (i.e., more than fifty-five per cent) or where, in the Board's discretion, a representation vote should be held in the particular circumstances of a case. One of those circumstances is a purported change of heart by employees who have previously signed union membership cards.

11. On the other hand, neither the Legislature nor the Board has taken a myopic view of the realities of the situation. Employees can and do change their minds. In some jurisdictions the statute precludes or inhibits such expressions (British Columbia, Canada) so that certification is based solely on membership cards. In others they are irrelevant because the preferred method of testing employee wishes is a representation vote. Ontario has evolved a middle position recognizing the validity of union membership cards, but retaining some flexibility to seek the confirmatory evidence of a representation vote where employees have put before the Board a timely "petition" or other document indicating a change of heart. Petitions too have been part of the certification process for decades.

12. The Board recognizes that "statements of desire" (see Form 6), usually in the form of a "petition", are not regulated by the Act as directly or precisely as union membership evidence. There is no statutory definition equivalent to section 1 (l)(l), nor is there any requirement for a monetary payment, in the nature of consideration confirming the act of signing. There is no statutory declaration similar to Form 9 attesting to the regularity and sufficiency of the membership evidence. There is usually no confirmatory signature of a subscribing witness. Nevertheless, the existence of such statements appears to be contemplated by section 103(2)(j) of the Act and Rule 73 of the Rules of Practice; and, in any event, the Board has a long-established practice of accepting such petitions and exercising its discretion to order a representation vote where: the petition is voluntary (as evidenced by testimony adduced in accordance with Rule 73 of the Rules of Practice), and the petition contains the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt whether these "members" (in accordance with section 1(1 )(l)) continue to support its certification.

13. The Board must be satisfied, however, that when these union supporters sign the document indicating an apparent change of heart, they were doing so voluntarily, and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals. It must be clear that the circulation of the petition is free from the actual or perceived influence of management. Often, as in the present case, a statement of opposition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the opposition document? While an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a document opposing the union.

14. Frequently, as in the present case, such documents are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be perceived to be acting on its behalf. In these circumstances, an employee may sign the document because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign because of conduct which suggests that continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case can one regard his signing the petition as being truly voluntary - although, of course, the mere identity of interest between the employer and the objecting employees is obviously not sufficient in itself to link the petition with management in the minds of reasonable employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits. But, in the Board's experience there are enough instances where employers have committed unfair labour practices, or have sponsored or supported anti-union petitions that these employee fears cannot be discounted as being patently unreasonable.

15. It is for this reason that the Board undertakes the inquiry contemplated by Rule 73(5) of the Rules of Practice, in order to satisfy itself from the circumstances of the origination, preparation, and circulation of the opposition document that it truly represents the voluntary wishes of those who signed it. In Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board discussed the nature of this inquiry in a long passage to which we might usefully refer:

16. The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC 16,264 in the following terms:

"In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories."

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also~ however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)

Reference might also usefully be made to the following passage from Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, wherein the Board has recently reaffirmed its approach to such employee statements.

Before reviewing each of these issues it is useful to understand the general legal and policy background against which petitions are considered by this Board. There is usually and naturally an identity of interest between an employer and those of his employees interested in opposing an applicant trade union. In this context the circulation of a statement of desire involve petitioners approaching their fellow employees to solicit support. Understandably, an employee so approached may worry or feel anxious that his refusal to sign such a petition will become known to his employer given this natural interest employers have in employees opposing the trade union. But, this identity in interest between employer and opposing employees, standing alone, has never been viewed by this Board as undermining the reliability of signatures places on a circulated petition. If this were not so, a petition could never be found to be voluntary. On the other hand, this is not to say that a similarity in interest between employer and petitioners is irrelevant and, indeed, it is the reason why this Board subjects the origination and circulation of a statement of desire in opposition to an application for certification to considerable scrutiny. There is an onus on those employees who present the documentary evidence to the Board to demonstrate that the signatures contained therein constitute a voluntary expression of the wishes of those employees who on recent and earlier occasion joined the applicant trade union. It is in this context that the Board, in the often cited Pigott Motors (1961) Ltd. case, 63 CLLC 16,264, made the following observations:

41. Actions by either the employees opposing the trade union or the employer can adversely affect the reliability of a statement of desire. Direct and open support by an employer will obviously suggest a relationship between the employer and the petitioners that would reasonably cause anxiety in the minds of employees approached by the petitioners. Therefore, in such circumstances, it would be just as reasonable to infer that the employees signed the document to conceal their support for the trade union as it would be to conclude that they signed voluntarily. Where this is the case, the Board usually takes the view that the petitioners have not satisfied the onus on them and the statement of desire is dismissed as an unreliable indicator of the true wishes of the employees. Similarly, actions by the petitioners without support of the employer can equally destroy the reliability of a statement of desire. Circulating a document in the presence of foremen or representations clearly indicating support by the employer can produce the same anxiety in the minds of employees whose signatures are solicited and thus prompt the Board to respond in a similar fashion.

IV

16. In the instant case the employee statements opposing the union's certification application take the form of individual typewritten documents, each bearing the signature of a single employee. Most of the documents bear the names of employees for whom no union membership card was submitted - presumably because they were not approached or, if approached, indicated no interest in trade union representation. These statements of opposition add little to the inquiry mandated by section 7 of the Act. In the absence of proper documentary evidence of membership, there would be no basis for inferring support for the union, and the union is required to positively demonstrate such support. The absence of a membership card is already treated as a "no-vote" - again, to borrow the terminology used by one of the witnesses. Of more immediate concern is the purported change of heart by a few employees who had earlier become members of the union and indicated a desire for representation. What prompted them, a few days later, to sign a document purportedly indicating a contrary intent?

17. Evidence concerning the origination, preparation and circulation of the opposition documents was given by Bruce Macauley, the "production control supervisor". Mr. Macauley was one of three individuals whom the union and the employer agreed should be excluded from the bargaining unit because they exercised managerial functions within the meaning of section 1 (3)(b) of the Act. However, the bargaining unit is relatively small (32 employees) and the "managerial team" is somewhat informal and unstructured, and while the parties have identified Mr. Macauley as being on the first tier of management, it is clear that he also acts as a conduit of information which he receives from the "shift supervisors" who work with and co-ordinate smaller work groups but are themselves included in the unit. On the other hand, there is also some indication in Mr. Macauley's evidence of responsibilities more clearly managerial in character. He testified that he spends about sixty per cent of his time in supervisory duties and does not normally work on the machines except on a "fill-in" capacity when there are backlogs. He may occasionally grant casual time off and, if necessary, require employees to work overtime or schedule them to come in early. He shares an office with two other individuals whom the parties have also agreed to exclude as members of management. He monitors the quality of employees' work and will discuss problems or error with them. He has had occasion to recommend to the plant manager that an employee be suspended or dismissed, and although his recommendations have not always been followed, it is clear that his influence is not insignificant.

18. Mr. Macauley testified that he first learned of the union's organizing efforts on Friday, November 1, 1985, when the plant manager brought to his attention the Form 6, Notice of Certification Application. After reading the notice, he came to the conclusion that he could be included in the proposed bargaining unit and consulted a solicitor friend as to what might be done to avoid that consequence. Acting on the solicitor's advice and the advice of another friend with whom he has business dealings, Mr. Macauley drafted the opposition statement which was typed by his wife. Mr. Macauley made a number of xerox copies for distribution to interested employees. When his supply was exhausted, he later made more copies on the company's office copier to which he has access.

19. While Mr. Macauley's actions spring from his own personal opposition to the union, his activities were not unknown to senior members of management. On the contrary, when Mr. Macauley advised senior company officials of his intention, they gave him permission to post copies of his statement at various locations throughout the plant, together with a notice which they prepared for him. The notice reads as follows:

TO WHOM IT MAY CONCERN

CONFERENCE CUP CO. LTD. HAS RECEIVED AN APPLICATION BY A UNION FOR CERTIFICATION.

POSTED ON THE NOTICE BOARD AS REQUIRED BY LAW IS THE PARTICULAR NOTICE UNDER THE LABOUR RELATIONS ACT.

THE COMPANY HAS NO PERSONAL OPINION ON THE APPLICATION EXCEPT THAT THERE MAY BE SOME QUESTION CONCERNING THE PROPOSED MAKEUP OF THE BARGAINING UNIT, IN THAT SOME EMPLOYEES ARE CONSIDERED MANAGEMENT BY THE COMPANY

IF YOU AS AN EMPLOYEE HAVE OBJECTION TO BECOMING PART OF A UNION, YOU HAVE A RIGHT TO OBJECT UNDER THE TERMS SET OUT IN PARAGRAPHS 4 and 5 and 6 and 7 OF THE NOTICE FORM. IF YOU DO HAVE OBJECTIONS, YOU MUST FOLLOW THE FORM AND HAVE YOUR OBJECTION TO THE ONTARIO LABOUR RELATIONS BOARD BY REGISTERED MAIL NO LATER THAN NOVEMBER 7th, 1985. IF YOU DO NOT OBJECT IN THIS WAY, BY NOVEMBER 7, 1985, IT WILL BE TOO LATE FOR YOU TO REGISTER YOUR OBJECTION AND THE MATTER WILL PROCEED WITHOUT YOUR INPUT.

ATTACHED TO THE NOTICE BOARD AT VARIOUS PLACES WILL BE A FORM WHICH YOU MAY SIGN IF YOU SO WISH, AND WHICH CAN BE SIGNED AND LEFT WITH THE OFFICE, WHERE ENVELOPES WILL BE PROVIDED FOR MAILING.

[emphasis added]

20. In addition, the employees on each of the three shifts were asked to attend a meeting in the company lunchroom during what would ordinarily be their regular working hours. Mr. Macauley attended two of those meetings (day and evening shift) together with the company owner. He testified that he did not attend the third meeting, but assumed that the content was the same.

21. At the meetings, the company owner indicated that there had been an application for certification and that employees were entitled to object. It was further indicated that Mr. Macauley had prepared statements of objection which employees could sign if they wished to do so. According to Mr. Macauley, the owner indicated that those objections could be given to him (Macauley) or delivered to the company office for mailing to the Board. As it turned out, most of the employees adopted the first option. Thus, whatever the company's intention, it was obvious that the employees were being invited, on an individual basis, to signify to their employer, in writing, whether or not they opposed the union's certification.

22. There is no allegation that the employer has engaged in any overtly coercive conduct nor were there even any disparaging remarks directed against the union. However, the employer's decision to announce and support the solicitation of employee statements opposing the union makes it very difficult to conclude that such statements were forthcoming voluntarily from those employees who, shortly before, had clearly and unequivocally subscribed to union membership. Those employees would know that Mr. Macauley, a managerial employee, had prepared the statements in opposition, and that he would be making copies available for signing. Apart altogether from Mr. Macauley 's own managerial status, they would know (or reasonably infer) that the owner supported Mr. Macauley's endeavours - as, of course, it did. It was the company's decision to interrupt production for the purpose of holding meetings to point out that Mr. Macauley would be taking steps to contact opponents (which, in turn, by a process of elimination, could identify union supporters).

23. Also troubling is the suggested mechanism for expressing opposition: a written statement to be delivered to Mr. Macauley himself or (in accordance with the posting prepared by the company) to the company's office. There is no precaution taken to ensure that the employees' anonymity will be preserved. In consequence, the employees were faced with a choice: either sign the individual statements in opposition and deliver them to the company or Mr. Macauley, or decline to do so, and risk the reasonable inference (which, in fact, is substantially correct) that those who did not tender such statements would be known to the employer as union supporters.

24. This is not to say that the employer has intentionally engaged in a calculated scheme to "ferret out" the union supporters or that the employer has any intention of penalizing employees who opt to join a trade union. There is no evidence that this is the case. But that is not the point. The issue is not the employer's intentions but rather the fears of the ordinary employee whose union support may be exposed to the employer.

25. The concern expressed in the cases is not an artificial construct based only on speculation, nor is it a paternalistic preconception about the way in which employees engaged in forming a union will view their employer. The decision of employees to opt for trade union representation is not a neutral event from the employer's point of view. Collective bargaining can lead to a challenge to managerial prerogatives which were previously unfettered. Employer opposition is entirely understandable, and, of course, not in itself illegal. But, by the same token, the typical employer is not likely to warmly embrace those employees who have opted to "bring the union in". Section 111 of the Act explicitly recognizes that employees may have legitimate fears if they are identified as trade union supporters - not that their employer will engage in reprisals, but that such occurrence is possible, has happened in some instances, and is infinitely easier when an employer is able to precisely identify who supports the union and who does not. (For an example of a situation in which an employer unlawfully discharged known union supporters even after an unsuccessful representation vote see: Wyeth Limited, [1979] OLRB Rep. Dec. 1311.) That a particular employer may, in fact, have no such intention does not diminish the potential for employee concern recognized by section 111 of the Act; and we might note that the instant case might have had a quite different complexion if the employer had not coupled its expressed disinterest with a positive suggestion about the way in which employees could openly identify themselves to management as persons who did not support the union. Finally, for the purpose of completeness, we should also point out that there was no direct evidence concerning the circumstances in which three of the four union members" who had purportedly "changed their minds", came to execute the opposition document. We have no direct evidence as to the reason for their "change of heart" other than as a response to the scenario outlined above.

26. We do not think that it is necessary or appropriate for the Board to express any view on the age-old debate about whether union certification "should" be based on representation cards, representation votes, or some combination of the two - save to note that certification is merely the first step in an often long and laborious collective bargaining process, and if a union does not have employee support during this process the relationship will not last long. To date, partisans for one point of view or the other have not been able to mobilize conclusive empirical evidence or persuade the Legislature that one mechanism or the other is demonstrably better able to meet the diverse objectives of the labour relations community. [For an interesting discussion of this debate, see Paul Weiler: Reconcilable Differences: New Directions in Canadian Labour Law, Carswell Co. Ltd., Toronto (1980) at pages 37-49.] The issue before us is much narrower than that: as a purely factual matter, should we give weight to the statements of objection of four union members and should we exercise our discretion to direct a representation vote, notwithstanding the fact that the union has filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees in the bargaining unit? For both questions, our answer is "no". We are satisfied that the union has demonstrated the required level of documentary membership support to warrant certification without recourse to a representation vote and we do not think there is a sufficient basis to exercise the Board's residual jurisdiction to direct such vote.

27. For the foregoing reasons, the Board finds and confirms 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 November 7, 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 ascertaining membership under section 7(1) of the said Act.

28. A certificate will issue to the applicant in respect of the above-described bargaining unit.

DECISION OF BOARD MEMBER F.C. BURNET;

1. In paragraph 26, the majority sums up the issue and its decision as follows:

should we give weight to the statements of objection of four union members and should we exercise our discretion to direct a representation vote, notwithstanding the fact that the union has filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees in the bargaining unit? For both questions, our answer is "no". We are satisfied that the union has demonstrated the required level of documentary membership support to warrant certification without recourse to a representation vote and we do not think there is a sufficient basis to exercise the Board's residual jurisdiction to direct such vote.

I disagree.

2. The problem is that the documentary evidence itself is in dispute. Of a bargaining unit of 32, the union submitted 17 unchallenged cards (53%), plus 4 "overlaps", that is, cards which were subsequently rescinded by the employee concerned by way of petition to the Board. If these four are excluded from union membership rolls, a vote becomes mandatory under the Act; if included, certification will follow without a vote.

3. Two familiar problems stand in the way of resolution of this problem of determining the real motivation of these four employees. First is the need to protect the anonymity of union supporters and non-supporters during these proceedings from possible intimidatory reprisals by either company or union. Second is the lack of knowledge of legal and Board proceedings, as well as financial constraints, on the part of employees who seek to exercise their right to petition the Board.

4. In the instant case, in view of these constraints and the resultant limitations in the scope and depth of evidence presented, I think it is not possible for the Board to conclude with a reasonable degree of certainty and objectivity whether the four persons are union supporters or not. The only solid evidence was that they signed both the membership card and the counter petition. There wasn't any evidence that the four in question were or were not coerced or intimidated in either case. Of the five objectors who did testify (not necessarily including any of the "overlaps"), the uncontradicted and consistent evidence was that they were not coerced or intimidated into signing the petition. To the extent that inferences are to underlie our decision, then I would think that such evidence as we do have supports the opposite inferential conclusion than that reached by the majority.

5. But we do not need to rely on inferential conclusions to achieve the purposes of the Act here at issue, which is to respect the wishes of the majority of employees in selection of their bargaining agent. The certification procedures are based on the simple principle that no vote should normally be ordered where evidence of majority union support is clear and beyond question, i.e. fifty-five per cent or more. A vote should be ordered when attainment of fifty-five per cent is not clear and beyond question. This is the reality and imperative of the legislation as it currently stands, and it is immaterial whether philosophically one is inclined to favour the secret ballot over membership cards or the opposite.

6. The documentary evidence of over fifty-five per cent support referred to by my colleagues~ in its totality, is not clear and beyond question. Given the inability of the Board or of the applicant or objectors to resolve the doubt respecting the true motivation of the persons in question, an expeditious vote by secret ballot is not only clearly the logical and equitable course for all parties, but is, in my view, required by the letter and spirit of the legislation and the best method under these particular circumstances to achieve the fundamental purpose of the Act to promote harmonious and amicable labour relations.

7. I would so direct.