[1986] OLRB Rep. April 426

2728-85-R Labourers' International Union of North America, Local 625, Applicant, v. 407689 Ontario Limited carrying on business as Chatham Concrete Forming, Respondent, v. Group of Employees, Objectors

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members S. O'Flynn and I. M. Stamp.

APPEARANCES: David Strang and Victor Claro for the applicant; F. Stewart Harris and Albert Postma for the respondent; Pasquale Melillo for the objectors.

DECISION OF THE BOARD; April 1, 1986

I

1The name of the respondent is amended to read: 407689 Ontario Limited carrying on business as Chatham Concrete Forming.

2This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act.

3The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on September 6, 1978, the designated employee bargaining agency is The Labourers' International Union of North America Ontario Provincial District Council.

4The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.

5The Board further finds, pursuant to section 144(1) of the Act, that all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors in the Counties of Essex and Kent, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

II

6The lists filed by the respondent employer indicate that there were nine individuals actively at work on the day the application was made. Another person, whose name appears on Schedule "B", was apparently working "part-time" or on an "occasional" basis around the time the application was made. He was not actively at work on the application date. Two other persons, whose names appear on Schedule "C" were "laid off" in December and had not been rehired by the application date.

7In the construction industry, work opportunities and employment relationships are always somewhat uncertain. The work ebbs and flows, depending not only on an employer's success in attracting new business, but also upon the weather or the performance of other contractors who must complete their work first. The size of the crew fluctuates, depending upon the needs of the day. Workers move from job to job and employer to employer. A competitive bidder at the height of the construction season may employ dozens of workers. During the winter that same company may have no employees at all. Because of this fluctuating work force, the Board's focus in certification applications is upon those individuals actually at work - that is, actually in the bargaining unit - on the application date. The Board need not and usually does not have regard to any increase in the number of employees in the bargaining unit after the application was made (see section 119(2) of the Act).

8On that basis, then, the employees in the bargaining unit would be the nine individuals listed on the respondent's Schedule "A'. However, when this application came on for hearing before the Board on Friday, March 14, 1986, the union challenged that list on two grounds. The union contended that Wouter Postma is properly characterized as an equipment operator, not a "labourer", and thus should be excluded from the "Labourers' bargaining unit". The union further argued that Pasquale Melillo, a "working foreman", exercises managerial functions within the meaning of section 1 (3)(b) of the Act. The union urged the Board to appoint a Labour Relations Officer to inquire into the duties and responsibilities of the disputed individuals and to adjourn the proceeding until the list was settled.

9The Board declined to adjourn the proceeding or appoint an Officer at this stage. The representatives of the employer and the objecting employees had come from out of town and were prepared to proceed. That appeared to be the most expeditious course of action. There was no reason why the Board could not determine Mr. Melillo's status that day; moreover, it was apparent that whether or not the disputed individuals were included in the bargaining unit, it would still be necessary to consider the employee petition objecting to this application.

III

10In support of its application for certification, the trade union filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees of the respondent 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 one dollar has been made to the union in respect of its membership fees. The one dollar payment is in the nature of consideration and confirms the act of signing.

11The documentary evidence is supported by a properly completed Form 80, Statutory Declaration, attesting to its regularity and sufficiency. There is no allegation of any irregularity in the form of this documentary evidence, nor is there any alleged impropriety in the manner in which it was solicited. Certainly there is nothing to call into question the "voluntariness" of the individual acts of signing or to suggest that, by so doing, the employees were not indicating their desire to be represented by the applicant union. The form and contents of this documentary evidence are consistent with the requirements of section 1(1 )(l) of the Act and, as well, it meets 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" in excess of that required by section 7(2) of the Act, for certification without recourse to a representation vote.

12There was also filed with the Board a "statement of desire" or "petition" signed by a number of employees indicating that they wish to oppose the certification of the applicant. This petition included the names of certain individuals who had previously signed membership cards and paid one dollar in respect of membership fees, and, therefore, were "members" of the union within the meaning of section l(l)(l) of the Act. These individuals had had a purported change of heart, and now allegedly no longer wish to support the applicant's certification. If the change of heart was a voluntary one so that the union's documentary evidence might not accurately reflect the employees' subsequent or current wishes, the Board would ordinarily exercise its discretion to order a representation vote to resolve the question of the applicant's certification. This is the course of action urged upon us by both the respondent employer and the employee objectors. They, in effect, 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.

IV

13The 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 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(1)(l)). Indeed, there are now quite a number of Board decisions dealing with union membership evidence, as the Board has sought to apply sections 1(1 )(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.

14However, neither the Legislature nor the Board has taken a myopic view of the realities of the situation. Employees can and do change their minds. While in some jurisdictions the statute precludes or inhibits such expressions (British Columbia, Canada) so that certification is based solely on membership cards, and 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.

15The 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(1 )(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 or Form 80, 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, as we have already noted, 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 union membership cards that there is some doubt whether these "members" (in accordance with section 1(1 )(l)) continue to support its certification.

16The Board must be satisfied, however, that when these union supporters sign the petition indicating an apparent change of heart, they are doing so voluntarily, and are 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 petition 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 petition 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 petition opposing the union. And lest it be thought that the identification of union supporters and opponents is neutral information, one must remember that the Legislature does not regard it that way. Section 111 of the Act is designed to preserve the secrecy of the employees' choice. The Legislature has recognized the employees' concerns and sensitivities. Indeed, so has the respondent in the instant case. Mr. Postma, a co-owner, testified that when an employee offered to single out those who had signed union cards, Postma quickly interrupted and asserted that he did not want to know.

17Frequently, as in the present case, anti-union petitions 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 a petition 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. On the other hand, 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. Again, that is why the Act preserves the secrecy of union membership.

18It 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 petition, that the document 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:

24. 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 he 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.

V

19In the instant case, the petition was prepared and circulated by Mr. Melillo who is a "working foreman" and the company's most senior employee. However, the term "foreman" is a little misleading because Mr. Melillo has little of the authority typically associated with management. He does not hire or fire employees, nor effectively recommend such decisions. He has no significant influence with respect to layoffs, recalls, promotions, employee wages, or discipline. There is no evidence that he has the authority to grant time off or authorize expenditures for tools or equipment. No doubt he does have a special relationship with the company and its owners as well as the employees. 'Typically, he is the only person supervising their work and giving them directions on the job. But this, in itself, is not enough to make Mr. Melillo "managerial" within the meaning of section 1 (3)(b) of the Act. The employer, and Mr. Melillo himself, both assert that he is not "managerial". We agree.

20But that is not the end of the matter. As we have already noted, the real difficulty in this case is not whether Mr. Melillo is "managerial", but rather whether the employee petition expresses the free and voluntary wishes of those who signed it; and, in particular, the more current wishes of the employees who, only a short time before, indicated their unequivocal support for the union. In that regard, Mr. Melillo's own testimony is instructive.

21Mr. Melillo testified that he first learned of the union's organizing efforts when the company posted the Board's Notice to Employees. He and his wife drafted the petition, which he brought to work on Friday, February 14th. The employees typically report to work at the company's shop before being sent to the various job sites. Mr. Melillo decided that he would approach employees at the shop to see if any of them were opposed to the union.

22Usually, Mr. Albert Postma, the co-owner of the company, is also in the shop every morning. He was there that day as well. As he walked into the shop area he was met by Mr. Melillo who was in the process of talking to the employees. Mr. Melillo asked Mr. Postma to leave, indicating that the employees were having a discussion. Under ordinary circumstances such request would be most unusual, but Mr. Postma did leave. He told the Board that he had a pretty good idea that Mr. Melillo and the employees were discussing the union and he had been instructed by his lawyer not to become involved. He also told the Board that when an employee had approached him the previous day and began to name the union supporters, he (Postma) told the employee that he did not wish to know. He recognized that the choice was for the employees to make, and that any overt effort by the employer to identify union supporters or influence employee wishes might be construed as an unfair labour practice. He said nothing to the employees on the morning of February 14th. However, his appearance and immediate departure took place in full view of all of the employees then present.

23After Mr. Postma left, Mr. Melillo continued his brief discussion with the employees. He told them that he did not want to pressure them one way or the other. They could sign the document opposing the union, or refuse to sign if they so wished. Mr. Melillo then left the room because (he told the Board) he was a "foreman", and he was concerned that if he remained, employees might be swayed by his position and opinions. He decided that the wisest course was to leave, as Mr. Postma had done. However, unlike Mr. Postma he returned a few minutes later to retrieve the petition and find out who had signed it and who had not. He may have left the room because of a concern that his presence, status as "foreman", and expressed opposition to the union Inight unduly influence employees to sign a document which did not really express their true wishes; but, that influence was unavoidable so long as he would know who had signed and who had not. And, of course, the whole episode occurred within a few minutes of Mr. Postma' s appearance and uncharacteristic departure.

24In the circumstances of this case, and in the absence of evidence from any other employee, we are not inclined to disagree with Mr. Melillo's own assessment of how the employees would regard him. While he is not "managerial" in the sense contemplated by section 1(3)(b) of the Labour Relations Act and is, therefore, a member of the bargaining unit, he nevertheless does have a different role in the company and a special relationship with its owners. That role could, and in our view reasonably would, influence trade union supporters to sign the document presented to them rather than expose their union allegiance by refusing to do so. That is why he left the room after presenting employees with the anti-union document. But merely stepping out of the room does not remove the concern which, we repeat, Mr. Melillo himself identified.

25We are not prepared to give weight to the petition as a reliable indicator of the wishes of the union members who signed it. We hasten to add, however, that in making this finding there is no suggestion whatsoever of any employer misconduct or impropriety. It is simply that, on the facts, we are disposed to give predominant weight to the documentary evidence of union membership.

IV

26The 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 February 17, 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.

27Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

[emphasis added]

Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 3 above in respect of all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

28Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in the Counties of Essex and Kent, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.