United Food and Commercial Workers International Union v. Canada Dry Bottling Company Ltd., 1987 CanLII 3029

[1987] OLRB Rep. March 337

2952-86-R United Food and Commercial Workers International Union, Applicant v. Canada Dry Bottling Company Ltd., Respondent v. Group of Employees, Objectors

BEFORE: V. Solomatenko, Vice-Chair, and Board Members G. 0. Shamanski and D. A. Patter­son.

APPEARANCES: E. G. Posen and Dan Lacroix for the applicant; Walter Thornton and Jim Lough­ridge for the respondent; Paul Payne and Mervin Lloyd for the group of employees.

DECISION OF THE BOARD; March 27, 1987

1The name of the respondent is amended to read: "Canada Dry Bottling Company Ltd.".

2This is an application for certification.

3The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4Having regard to the agreement of the parties, the Board further finds that all employ­ees of the respondent at the City of Peterborough, Ontario, save and except supervisors, persons above the rank of supervisor, persons employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respon­dent appropriate for collective bargaining.

5The applicant has filed membership evidence demonstrating that it has a level of sup­port amongst the bargaining unit employees in excess of that required under the Act for certifica­tion without having a representation vote taken. However, there was also filed with the Board, a handwritten document, dated February 2, 1987, purporting to be a statement of desire to oppose the union's application (hereinafter referred to as the "petition"). The petition contains eight sig­natures and the Board is satisfied that there is sufficient overlap of signatures of employees who had signed both the petition and union membership cards as would cause the Board to exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote, if satisfied that the petition is voluntary. The Board therefore heard the parties' evidence and representations with respect to the voluntariness of the petition.

6In support of the petition, the Board heard the evidence of Paul Payne who is employed by the respondent as a sales representative and Mervin Lloyd who is employed as a driver mer­chandiser. It is Mr. Payne's evidence that he drafted the petition at his home on the evening of February 2nd, at which time he signed his name as the first name on the petition. Five of the remaining seven signatures were obtained late in the afternoon on Wednesday, February 4th in cir­cumstances which will be noted in some detail shortly. The remaining two signatures were obtained on the morning of February 5th at a restaurant in the Peterborough area, after which Mr. Payne personally delivered the petition to the Board. As to the five signatures obtained on February 4th, Mr. Payne was able to testify as having personally witnessed three of those signatures. Mr. Lloyd's evidence is that he "witnessed" the other two signatures, but he was not the person who presented the petition to them.

7The applicant's organizational drive took place during the month of January. It is read­ily conceded by both witnesses that during this time the employees had some significant concerns with their employment situation. According to Mr. Lloyd, the situation had been "downhill" for approximately 18 months. There appear to have been two major areas of concern for the employ­ees. The first involved questions regarding the continuation of the Peterborough operation in view of the corporate merger or take over of Canada Dry by Coca-Cola. Secondly, there were problems with the former manager of the Peterborough location, Rod Cooper. Mr. Lloyd attended a social function in Toronto for the company's employees on January 24th. At that time, he had a conver­sation with Mr. Reevie, the company's personnel liaison manager at the Toronto office. Mr. Lloyd's evidence is that during that conversation he expressed the employees' various concerns with their employment situation in Peterborough. However, he states that he did not discuss the on-going union organizing campaign with Mr. Reevie during that conversation.

8The union filed its application for certification on January 28th. On the evening of Janu­ary 29th there was a meeting at a local hotel involving all the employees. The company was repre­sented by Mr. Reevie and Mr. Loughridge who is the company's Ontario sales manager at the Toronto office. The evidence is not clear as to when the meeting was called, but Mr. Lloyd believes that Mr. Reevie called him personally to advise him of that meeting. In Mr. Lloyd's words, the meeting was essentially a "gripe session". He states there were no promises made by the company, but there was agreement that it had neglected the Peterborough operation. It is not clear from the evidence when the fact was announced to the employees, but Mr. Cooper's employ­ment was terminated effective January 30th and he was not in attendance at the meeting on the evening of January 29th.

9On February 3rd, the employees were advised that there would be a meeting the next morning at 7:00 a.m. which is their normal starting time. The evidence is that the employees were expected to be in attendance. Both Mr. Loughridge and Mr. Reevie were present at this meeting as well. The meeting lasted 15 to 20 minutes and took place in what is referred to as the drivers' common area at the front of the plant. A copy of the Notice to Employees of Application for Cer­tification (green sheet) was at that time already posted on a bulletin board in the drivers' common area. Both Mr. Payne and Mr. Lloyd testified that the application for certification was not a direct topic of discussion that morning. According to both, the main purpose of the meeting was to dis­cuss the question of a new manager for the Peterborough operation. Mr. Payne's evidence is that the matter of the application for certification only arose in response to an employee's question of who the new manager was going to be. He states that the company's reply to the question was that it could not say anything further on the subject because of the application for certification. Both witnesses agree that the question of the possibility of the respondent closing the Peterborough operation was on their own minds and probably on the minds of the other employees. In response to counsel's question, Mr. Lloyd's evidence is that no one stated at the meeting that the operation would be closed down if unionization took place. He also states that Mr. Loughridge assured them that to the best of his knowledge, the Peterborough operation would be continuing. Mr. Lloyd concedes that the meeting on the morning of February 4th influenced his decision to sign the peti­tion.

10As previously noted, Mr. Payne had drafted the petition on the Monday evening, Feb­ruary 2nd. At the time of the meeting on the morning of February 4th, his was still the only signa­ture on the petition. After the meeting, he gave the petition to one of the other signatories who, for purposes of these proceedings, is identified by the Board as "P5". Mr. Payne returned to the plant later that same day at about 4:00 p.m. At that time, "PS" returned the petition to him and at this point Mr. Payne's signature was still the only one on the petition. There was no evidence from "PS", nor anyone else, as to the whereabouts of the petition from about 7:00 a.m. until 4:00 p.m. when it was returned to Mr. Payne. The five signatures obtained on the petition on February 4th were all obtained during the period of approximately one hour after Mr. Payne received the peti­tion again from "PS". These signatures were obtained in the same common area or room in which the meeting had taken place earlier that morning. The evidence is that no member of management was present in the common area during the time that the petition was being signed and circulated. Management's offices are located off this common area and Mr. Payne states that Mr. Reevie may have been in the warehouse during this time. In terms of the actual process of obtaining the five signatures on the petition that afternoon, Mr. Lloyd's evidence is that Mr. Payne merely explained that this was a petition to oppose the union's application for certification. It is also his evidence that during this period of about one hour the employees' discussion was only to the effect that they needed more time to think about the whole question of unionization.

11The Board conducts its inquiry into the circumstances surrounding a petition in order to determine on the evidence before it whether an employee's signature on that petition may be con­strued as a voluntary expression of that employee's desire to oppose the union. Where the Board concludes that the signatures constitute a voluntary expression of opposition to the union, it thus finds the petition to be "voluntary". If the petition is voluntary and contains sufficient signatures as would bring the level of unequivocal membership support below that required for automatic certi­fication, the Board will normally exercise its discretion to order a representation vote to determine the true wishes of the employees.

12The onus of proving the voluntariness of the petition rests with the employees who ask the Board to give it effect. As the "green sheet" indicates, the Board requires direct evidence with respect to the circumstances surrounding the origination of the petition and the manner in which each of the signatures was obtained. Before the Board can conclude that a petition is voluntary, it must be satisfied that there has been no involvement by management or even perception of man­agement involvement in any aspect of the petition. Where the evidence fails to satisfy the Board that the petition originated and was circulated in circumstances which were free of either direct or perceived management influence or interference, it will not accept the petition as a voluntary expression of opposition to the union. In conducting such an inquiry, the Board has consistently held that the question of the physical custody of the petition throughout its entire period of exis­tence is a key factor in determining whether it has been free of management influence or interfer­ence. Where there is a hiatus in the evidence with respect to the custody of the petition, the Board cannot be so satisfied and therefore does not give weight to the petition: see, for example, Vered & Harvey Company Limited, [1971] OLRB Rep. Nov. 736 and Groves Park Lodge, [1979] OLRB Rep. Sept. 871.

13As previously noted, in the instant case there is a gap in the evidence with respect to the custody of the petition from approximately 7:00 a.m. to 4:00 p.m. on February 4th. On the basis of the lack of that evidence alone, the Board cannot be satisfied as to the voluntariness of this peti­tion. The gap in the evidence with respect to the custody of the petition occurs at a very critical juncture. Mr. Payne surrendered its custody to "P5" immediately following the meeting on the morning of February 4th. For purposes of deciding this case, it is not necessary for us to deal with the evidence regarding the circumstances of that meeting. However, it is noted that the evidence simply does not indicate a satisfactory reason why custody of the document was surrendered to "PS" in the first place. There was no suggestion that he was even to attempt to solicit signatures. If it was simply a matter of safekeeping, there was no indication why Mr. Payne could not retain it in his possession as he obviously did on the previous day. In these circumstances, failure to adduce direct evidence as to what happened to the petition throughout the day on February 4th constitutes a material gap in the evidence required to discharge the onus of proving the voluntariness of the petition. On the basis of the evidence before us, we cannot be satisfied that the petition is volun­tary and, accordingly, give it no weight.

14The Board is, therefore, 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 6,1987, 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.

15A certificate will issue to the applicant.