Alex Nigro v. Retail, Wholesale and Department Store Union

[1987] OLRB Rep. January 166

0276-86-R Alex Nigro, Applicant, v. Retail, Wholesale and Department Store Union, Respondent, v. T. Eaton Company Limited, Intervener

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. H. Wightman and R. R. Montague.

APPEARANCES: Stewart D. Saxe, Cheryl Elliot, David Cote and Alex Nigro for the applicant; Paul Cavalluzzo and Bernie Hanson for the respondent; H. A. Beresford, R. A. Hubert and Barry G. Puckett for the intervener.

DECISION OF OWEN V. GRAY, VICE-CHAIRMAN, AND BOARD MEMBER R. R. MONTAGUE; January 23, 1987

1. This is an application under section 57 of the Labour Relations Act ("the Act") for a declaration that the respondent no longer represents a unit of full-time sales people employed by the intervener at its store at 2300 Yonge Street in Toronto.

2. Subsection (3) of section 57 of the Act provides that:

(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

Thirty persons were employed in the subject bargaining unit on April 24, 1986, the date this application was filed. May 8, 1986, was fixed as the terminal date for this application and, in accordance with the Board's usual practice, that is the date (hereafter referred to as "the assessment date") which we determine under clause 103(2)(j) of the Act to be the time as of which evidence of signification by employees that they no longer wish to be represented by the respondent trade union must be presented to the Board in this application.

3. Prior to the assessment date, 15 of the aforesaid 30 employees had signified in writing that they no longer wished to be represented by the respondent. In accordance with common usage, documents by which employees so signify will be referred to here as "petitions." After having so signified, and also before the assessment date, two of those 15 employees signified in writing that they wished the respondent to continue as bargaining agent for employees at the subject location. Again in accordance with common usage, documents by which employees so signify will be referred to here as "counterpetitions." Counsel for the applicant acknowledges that these two affirmations of support were voluntary expressions of the wishes of the employees who signed them.

4. It has been the Board's long-standing practice in applications of this kind to consider only the last voluntary signification of wishes made by an employee on or before the assessment date when making the assessment required by subsection 57(3). An employee who signs a petition and later voluntarily signs a counterpetition on or before the assessment date is not treated as having signified "at such time as is determined under clause 103(2)(j)" that she no longer wished to be represented by the trade union identified in the petition and counterpetition. The consequence of assessing this application in that manner is dismissal, since the 13 employees whose signatures on the petitions represent the last signification of their wishes as of the assessment date constitute less than 45 percent of the 30 employees who were in the bargaining unit on the date the application was filed.

5. Counsel for the applicant submits that the Board has no jurisdiction to give any effect to counterpetition in deciding whether to order a vote in a termination application. He says the only question the Board must address under subsection 57(3) is whether not less than 45 percent of employees in the unit have voluntarily signed a petition at some time before the assessment date. If they have, he argues, it does not matter whether any of them has subsequently signed something else. He acknowledges that this very argument was made to and rejected by the Board in Browning-Ferris Industries, [1982] OLRB Rep. June 816, where the Board concluded that:

14. As with the certification situation, on an application for termination, where the Board is also required to ascertain employee wishes, the counter petition expressing reaffirmed support for the trade union is as relevant as the petition against the union. In section 57(3) of the Act the Board is directed to "ascertain ... whether not less than 45 per cent of the employees ... have voluntarily signified in writing at [the terminal date] that they no longer wish to be represented by the trade union ...". The Board concludes that this section requires the Board to determine the percentage of employees who at the terminal date no longer wish to be represented by the union. The Board further concludes that when it is in receipt of a document, by the terminal date, purporting to express the wishes of employees to continue to be represented by the trade union, it is incumbent on the Board to give it full consideration in determining under section 57(3) "whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at [the terminal date] that they no longer wish to be represented by the trade union ..." (emphasis added). A numerically relevant counter-petition received by the Board by the terminal date purporting to express the wishes of employees on the question of union representation cannot be ignored by the Board as urged in this case by the applicant and employer. It is evidence which must be considered by the Board to determine the state of employee wishes as at the terminal date.

Counsel invites us to conclude that that decision and others to the same effect are wrong.

6. The interpretation reaffirmed in Browning-Ferris Industries, supra, has been applied by the Board for a number of years: see, for example, E.S. & A. Robinson (Canada) Limited, [1967] OLRB Rep. July 363; Gorman Eckert and Company Limited, [1969] OLRB Rep. Apr. 81 (reconsideration denied, [1969] OLRB Rep. June 438); Redpath Sugars Ltd., [1974] OLRB Rep. July 502; Mitten Industries Gall Ltd., [1976] OLRB Rep. Mar. 76; VS Services, [1978] OLRB Rep. Mar. 323; The Sudbury Star, [1978] OLRB Rep. Sept. 873; Browning-Ferris Industries, supra; Canadian Pacific Hotels Limited, [1982] OLRB Rep. June 824; Buntin Reid Paper, [1983] OLRB Rep. Apr. 487; and, Canadian Pacific Hotels Limited, [1985] OLRB Rep. Oct. 1445. The alternate interpretation contended for by counsel has been put before the Board more than once: for an early example, see the dissent of Board Member Irwin in Gorman Eckert and Company Limited, supra. We recognize that this panel is not bound by law to follow the Board's previous decisions on this or any other point. While the age, frequency and consistency of the Board's past decisions on this particular point do not guarantee the correctness of their interpretation of the words of subsection 57(3), those factors should lead us to be cautious about rejecting that interpretation. That is particularly so when what is at stake is one of the well established rules by which representation contests are judged, since there will be considerable reliance on those rules by the contending forces in any such contest, both in their actions during their respective campaigns and, later, in the way they frame their issues and present their evidence with respect to those campaigns in proceedings before the Board.

7. At first blush, the alternate interpretation contended for by counsel for the applicant is merely a literal reading of the words of subsection 57(3). When the interpretation is subjected to closer examination, however, the applicant concedes the necessity of engaging in a purposive, rather than literal, interpretation of at least some of the words of that subsection. For example, a literal interpretation of the phrase "at such time as is determined under clause 103(2)(j)" might require that all signatures be placed on the supporting petition on the same day or even, perhaps, at the same instant, if the focus of the subsection's attention is thought to be on whether the employee has ever signified a particular wish, rather on than the state of the employee's wishes at a particular time. Counsel seeks to avoid that consequence of relentless literalism by having us read "at such time" as "at or before such time." Counsel further refined the "at or before such time" substitution when faced with the proposition that this would require the Board to act on a petition signed months or years before the application date. Counsel did not argue that this was the intent of the legislature; he said he expected that the Board would deal with this problem by putting a limit on the period of time during which a petition signature would be regarded as effective. Presumably, the Board would find this power by further purposive analysis of the subsection. As a result of the application of common sense about labour relations, what begins as a strict literal analysis ends by implying into subsection 57(3) a great deal more than does the Board's usual interpretation, which treats "at such time ..." as meaning "as at such time ...", which is consistent with the language of clause 103(2)(j) itself.

8. Another problem with the applicant's interpretation of subsection 57(3) is this: if the legislature had thought that the question to be determined under that subsection could only be affected by documents gathered up and filed by the applicant, there would have no reason for it to have required that that question be determined as at a time to be set under clause 103(2)(j). The only reason for setting an assessment date which is different from the application date is to give those opposed to the application the opportunity, after receiving notice of the application, to bring into existence and file with the Board such documentary evidence of employee wishes as may contradict the documentary evidence of the applicant. If no such documentary evidence can affect the result, then there is no need to set a separate assessment date. If the applicant's documentation is the only documentation that can affect the threshold question, as is the case in applications for certification under section 9 of the Act, then the sensible thing is to make the application date the date as of which the relevant threshold question is determined, which is what the legislature did in section 9. In applications under section 7, in which documentary evidence of employee opposition can influence the result, the legislature directs that the Board set an assessment date. In that context, the fact that the legislature calls for a separate assessment date in subsection 57(3) strongly suggests an expectation and intention that timely documentary evidence contradictory to that of the applicant be entertained. Counsel for the applicant was unable to explain the purpose a separate assessment date could have been intended by the legislature to serve if his submissions on the interpretation of subsection 57(3) were correct.

9. Counsel for the applicant observed that, on the Board's existing jurisprudence, opponents' documentary evidence of employees' desire for union representation can deprive applicants for termination of a representation vote to which they would be entitled if the Board only considered the applicants' documentary evidence, while no amount of similar evidence of employee wishes can deprive a trade union applicant for certification of the right to a representation vote if its membership evidence satisfies the numeric requirements of section 7 or 9, as the case may be. He described this difference in treatment of opponents' documentary evidence as inequitable, and invited us to remedy the inequity in our interpretation of subsection 57(3).

10. The suggestion that opponents' evidence of employee wishes ought to be equally efficacious in both certification and termination applications ignores important differences in the requirements which the Legislature has imposed on applicants in those different types of application. In order to be entitled to a representation vote in an application under section 7, or to have effect given under subsection 9(4) to a pre-hearing vote conducted under subsection 9(2), an applicant for certification is only required to demonstrate that a certain percentage of the employees in the unit on the application date were members as of a particular date (the assessment date on an application under section 7; the application date on an application under section 9). The documentary evidence required of an applicant for termination, on the other hand, must directly address employee wishes with respect to continued representation by the incumbent union as of the relevant date. Because of the nature of the Legislature's test for entitlement to a vote in certification cases, evidence in opposition (other than evidence of union wrongdoing) could only deprive an applicant for certification of a vote to which its own documentary evidence would otherwise entitle it if that evidence in opposition established that employees who appeared from the applicant's evidence to be members were not in fact members or had ceased to be members as of the relevant date. (It might be a matter of debate whether any documentary evidence could rebut the conclusion compelled by clause 1(1)(l) of the Act when the applicant's membership evidence establishes that an employee has applied for membership and paid at least one dollar as contemplated by that clause. It will be recalled that clause 1(1)(l) was added to the Act after the Supreme Court of Canada in Metropolitan Life Insurance Company & International Union of Operating Engineers, Local 796, et al., 1970 CanLII 7 (SCC), [1970] S.C.R. 425, 11 D.L.R. (3d) 336, refused to countenance a broadly purposive interpretation by the Board of the word "members" in what is now section 7 of the Act.)

11. The Act does not require that an applicant for certification demonstrate that a sufficient number of its members in the bargaining unit actually wished to be represented by it in collective bargaining with their employer as of the relevant date. Evidence that one or more of them did not so wish as of that date does nothing to rebut the applicant's evidence that they are members. Such evidence cannot affect entitlement to a vote because it does not address the question put to the Board by the Legislature. Such evidence is only relevant in an application for certification under section 7 with respect to the exercise of the Board's discretion under subsection 7(2) to certify without a vote or order a representation vote: see Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 13 at paragraphs 15 to 19. Unlike its requirement of an applicant for certification, the Legislature requires the applicant for termination to establish by documentary evidence that the wishes with respect to representation of a minimum number of employees in the unit were consistent, as of the relevant date, with the result sought. Opponents' documentary evidence of employee support for continued representation by the union does address the question on which entitlement to a vote hinges in a termination application and, so, can affect whether a vote is ordered. The difference in treatment which counsel describes as inequitable is a consequence of the express language of the Act. Whether or not that difference is inequitable is not a question which the Legislature has left for this Board to decide.

12. For these reasons and the reasons set out in the majority decision in Browning-Ferris Industries, supra, we are satisfied that the interpretation of subsection 57(3) which was reaffirmed in that decision is a reasonable one and ought to be applied.

13. Counsel for the applicant argued in the alternative that if the Board has the power to consider counterpetitions it also has the discretion to ignore them and order a vote in cases in which the total number of employee signatures on the petition or petitions is not less than 45 percent of the number of employees in the unit on the application date. He urged us to exercise that discretion in favour of the applicant in this case because 13 unrevoked petition signatures out of 30 employees is less than one full person short of the required 45 percent.

14. Unlike section 7, subsection 57(3) does not give the Board the discretion contended for or any other discretion. If the signatures on a timely counterpetition are voluntary, as counsel concedes in this case, and represent the last signification of wishes by the signers, as they do here, then those signatures must be taken into account by the Board in answering the question which it understands is posed by subsection 57(3). Only those petition signers who have not subsequently and voluntarily signed a timely counterpetition can be said to have signified as of the assessment date that they no longer wish to be represented by the respondent. If those persons do not constitute at least 45 percent of the employees in the subject bargaining unit at the time the application for termination was made, as subsection 57(3) requires, then the application must be dismissed. An application for certification under section 7 would also have to be dismissed if the applicant only established that 43.3% of employees in the unit were members at the relevant time. It is true that applicants for termination of the respondent's right to represent other units of Eaton's employees (in applications heard together with this one) have succeeded in persuading a majority of this panel that they have satisfied the requirements of subsection 57(3). With respect, however, we do not accept Board Member Wightman's view that those successes should relieve the applicant in this case of the need to establish the level of support necessary under section 57(3) in this unit, any more than the respondent could have been relieved of the requirements of section 7 in any one of its 1984 applications for certification with respect to these units as a result of its successes in others.

15. Accordingly, this application is dismissed.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

1. As in both Browning-Ferris Industries, [1982] OLRB Rep. June 816 and Canadian Pacific Hotels Limited, [1982] OLRB Rep. June 824, I must respectfully dissent from the majority decision to deny the applicants a vote to determine whether a majority of the employers at the Yonge-Eglinton store wish to continue to be represented by the respondent union.

2. In arriving at this conclusion I am impressed by the lack of symmetry between the sections of the Labour Relations Act dealing with the certification of trade unions in contrast to those dealing with the termination of bargaining rights.

3. In the case of a certification application the Board in its discretion, may grant outright certification of bargaining rights if the membership evidence is in excess of 55%.

4. In the case of an application for the termination of bargaining rights there is no comparable provision giving the Board discretionary authority to terminate bargaining rights should the application represent 56% of the employees or, indeed, even 100% of the unit. Thus the legislators have made it clear that the termination of bargaining rights is a decision of such significant import that only by means of a government supervised secret ballot vote should and shall such an issue be determined. In this respect at least the legislators seem clearly disposed to place more confidence in the secret ballot than in statements of desire (petitions) which necessarily are hearsay in nature, despite the intensity with which the circumstances surrounding the origination and circulation of petitions are examined by the Board and Counsel for the opposing party.

5. Membership evidence in support of an application for certification is also hearsay in nature. Unlike petition documents the Board hears no evidence as to the circumstances under which the membership evidence was obtained unless the employee in question has the temerity to complain in person or conveys information regarding an impropriety by the union to someone knowledgeable enough and disposed to file a complaint. I have never regarded "evidence" of the payment of one dollar, (which causes the Board to view the transaction as a form of contract) or the declaration by an official of the union (that he or she has investigated the organizing process and is satisfied that no improprieties have taken place) as counter-balancing the absence of direct evidence of the sort which emerges during the examination of petitioners.

6. Quality of membership evidence notwithstanding, the Act provides that the Board may certify outright if the evidence exceeds 55% but that the Board shall direct a representation vote if the level of evidence is between 45% and 55%. In the latter case the legislators have again opted for the secret ballot as the preferred means of determining the true wishes of a majority of the employees. Thus the scheme of the Act is such that objecting employees who succeed with their petition may have the effect of removing from the Board its discretionary authority to grant outright certification but, even if every union supporter were to undergo such a change of heart, they could never relieve the Board of its obligation to direct a certification vote. I do not regard this as a perverse outcome because of the fact that the Board will have had before it evidence, albeit hearsay evidence, of recent and substantial interest on the part of employees in union representation. That there should be contemporaneous evidence of indecision in that regard (an opposing petition) does not seem to me to be grounds for denying all employees the right to express their feelings with the clarity and privacy a government supervised secret ballot vote provides, sheltering the individual as it does against both peer group and employer pressures.

7. Moreover it seems to me labour relations is often ill-served by an undue pre-occupation with symmetry. I would not, for instance, feel that equity is in anyway offended by the absence of a provision for outright termination of bargaining rights where evidence of such a desire exceeds 5%. Such a provision might have its advantages from an administrative viewpoint but its absence would have no equity implications for the applicants or other individual employees involved and whose interests I understand to be the primary concern of the legislators. Nor would I argue the need for symmetry between the certification and termination provisions of the Act insofar as the minimum level of support required in order for the applicants to succeed in winning the right to a vote. Legislative provisions requiring a lower level of evidence in support of a certification vote than a termination vote would not be inequitable vis-a-vis the individual employees affected. A coherent argument can be made to the effect that easier access to a certification vote would be consistent with public policy of encouraging collective bargaining, while the requirement of a higher level of support for termination or displacement applications would protect employees involved in a mature collective bargaining relationship against disruptions in the workplace which could result from termination applications which were specious in their nature.

8. However, the manner in which the Board views and acts upon evidence of support for one side or the other in both certification and termination applications does raise the equity issue in a direct fashion.

9. In a certification application the union is laying claim to institutional (bargaining) rights and in a termination application it is defending those same institutional rights. In both cases the success or failure of the union rests on its ability to gain and hold the support of a majority of the individuals in the bargaining unit and it is the responsibility of the Board to fathom the wishes of those individuals not of the union, whose wishes are manifestly apparent.

10. Just as the Board perceives itself as being required to direct a certification vote given the evidence of a certain level of support and notwithstanding the amount of evidence in opposition, in my view even if the minimum required by the Act were to be different in each type of case, if termination applicants can meet the minimum required of them the Board should perceive itself as being required to direct a termination vote notwithstanding any amount of evidence in opposition to the prayer. This is where symmetry is called for because it involves equality in the treatment of evidence.

11. In Norman Eckert and Company Limited, [1969] OLRB Rep. June 438, my former colleague H. F. Irwin canvassed this matter and hypothesized a situation involving a bargaining unit of 1000 employees. He pointed out that a termination application by 500 employees, the minimum required under the Act at that time, could fail as a result of one employee submitting a counter-petition. Thus the expressed desire for a vote by 49.9% of the employees would have been frustrated by 2.1% of the group. In the case before us, wherein the minimum requirement is now 45%, two signatures overlap those of the applicant petitioners with the effect of "reducing" their support to 43.3%. These two termination examples are to be contrasted with the hypothetical example of a trade union submitting 450 cards in support of an application for certification involving a bargaining unit of 1000 employees. In such a case even if all 1000 employees, (that is, including the 450 who originally supported the applicant union) were to voluntarily sign a petition opposing the situation, the Board would still order a certification vote.

12. Moreover all of this is being played out against the background of similar successful applications for votes to test union support in full-time and part-time units of this same employer at multiple locations, with all of the applications having been consolidated for hearing and disposition by this panel of the Board. Can we doubt for one minute that a desire to have the question tested by a secret ballot vote is widespread and substantial throughout those units of the company wherein the union presently holds bargaining rights? In light of the answer to which I believe we are undoubtedly driven, can we deny the applicant a vote in this one case?

13. To deny a vote requires us to uphold an interpretation within the apparent discretionary authority of the Board and of the Act which, while consistent with past Board decisions, nonetheless can be arrived at only through what I would perceive as inequitable treatment of evidence preferred by two groups of individuals. The resultant decision is therefore perverse and discriminatory.

14. Surely the Board's approach to the administration of public policy should first concern itself with a balancing of the respective rights and interests of these two groups of individuals before turning its concern to the institutional rights of the union. For, let there be no doubt, notwithstanding the style of cause of the application, the labour relations question at issue here is "What are the true wishes of the majority of these individuals"? We do no favour to employees by leaving the question unresolved.

15. In the foregoing analysis I have expressed criticism of both the legislation and its interpretation by the Board. Both critiques require further comment.

16. As a member of the tribunal responsible for administration of the Labour Relations Act, I recognize the questionable propriety of my having criticized the legislation which created the tribunal on which I serve. However, the Labour Relations Board is unusual in that the Act makes specific provision for representatives of employer and union interests on each panel. It becomes significant then to examine the nature of my "criticism" given that I am a representative of employer interests. The concerns I have expressed relate to the readiness with which employees may have access to a Board supervised secret ballot vote. In the instant case the beneficiaries would have been applicants for a termination vote. In other instances, however, I have argued with equal force on behalf of a significant easing of the tests an applicant for certification need only meet in order to obtain a certification vote.

17. My criticism is as to the manner in which the Board, acting within its own discretionary power, has viewed and weighed the evidence of the respective parties. As a member of the tribunal I feel it is not only a right but indeed a responsibility for me to comment on practices, procedures or policies where I perceive them to be inequitable or not serving to promote good labour/management relations. In such instances, as in the matter before us, however forcefully I express my opinions I would hope those opinions are not taken to be a reflection on my panel colleagues. The policy involved in this case is one of long-standing. The passage of time has permitted the consequences of those decisions to have become apparent in a manner such as to persuade me that the policy, procedure or practice, however correct it may have seemed when originally decided, has been overtaken by events in the development of labour/management relations and is now appropriate and contra-indicated in my view.

18. In my view, the sections of the Act upon which the decision turns are capable of an interpretation which would allow the Board to have granted a vote. Indeed, as I have indicated on many occasions, I would think the interests of labour/management relations would be better served in all cases where there are grounds to believe that substantial numbers of employees would prefer a secret ballot vote, whether for certification or termination purposes, the Board policy were to accede to that request. Under such a policy questions as to the voluntariness of petitions should not need to be of concern since the ultimate test would be the secret ballot.

19. Based on the foregoing views I would have granted the applicants their vote.