Bernard John Moore v. International Association of Machinists & Aerospace Workers, Local Lodge 1975, 1987 CanLII 3038

[1987] OLRB Rep. March 375

0903-86-R Bernard John Moore, of the City of St. Thomas, an employee of "Imperial Clevite Canada Inc.", Applicant v. International Association of Machinists & Aerospace Workers, Local Lodge 1975, Respondent v. Imperial Clevite Canada Inc., Intervener v. Group of Employees, Objectors

BEFORE: Robert J. Herman, Vice-Chair, and Board Members J. Wilson and D. A. Patterson.

APPEARANCES: D. Richard Mantz and Bernard John Moore for the applicant; L. A. Richmond, J. Nugent, M. Powers and A. Pinlatt for the respondent; Robert W. Little, Robert J. Atkinson and Allen E. Grotke for the intervener; no one appearing for the objectors.

DECISION OF ROBERT J. HERMAN, VICE-CHAIR AND BOARD MEMBER D A. PATTERSON; March 6, 1987

1. This is an application under section 57 of the Labour Relations Act for a declaration that the respondent trade union no longer represents the employees of Imperial Clevite Canada Inc. in the bargaining unit for which it is the bargaining agent. The Board is satisfied that this is a timely application.

2. Under section 57(3) of the Act the Board is required to ascertain "the number of employees in the bargaining unit at the time the application was made and whether or not less than forty-five percent of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the union ...". In Ontario Hospital Association [1980] O.L.R.B. Rep. Dec. 1759, the Board discussed the issue of voluntariness in a termination proceeding:

31. The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may. as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented in N.J. Spivak Limited, [1977] OLRB Rep. July 462:

6. In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49, a section designed to give vent to employee desires, requires the passage of at least one year from the date of the union's certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certification of the same union, and having regard to the purpose of section 49, the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 of the Act.

See also Northern Telecom Canada Limited, [19791 OLRB Rep. April 330.

32. Similarly, in the present case, having regard to the simple history of this matter, and the demeanour and evidence of the various sponsors of the petition as to their reasons for embarking on the course of conduct that they did, the Board is satisfied that these individuals acted on the basis of their own initiative and personal choice. The origination of the petition, in other words, is not a matter that troubles the Board in the present case. That, however, is not an end to the matter. While the signatures on the documents before the Board represent in excess of the 45 per cent required under section 49(3) of the Act before the Board can direct the taking of a representation vote, the Board still must ascertain whether the signatures of not just the petition's sponsors, but of a full 45 per cent of the unit, are a voluntary reflection of those employees' wishes. It must be remembered that the Board has the benefit of the direct evidence of only the sponsors of the petition who appear to testify; the remainder of the employees' wishes can be ascertained only through the evidence that they signed the petition, together with the inferences that the Board is able to draw from the circumstances under which they signed. As far as these other employees are concerned, their action in signing the petition presented to them represents no more than what the Board has described as their "ostensible" wishes, and the Board still has upon it the statutory obligation to ascertain from all of the surrounding evidence whether their actions in signing can be taken to have been voluntary. While background factors may, once again, be properly taken into account in weighing this issue of voluntariness, particularly where the evidence on circulation is at all equivocal, the Board is not entitled to simply assume from this alone that any employees who have signed have done so voluntarily. To do so would render meaningless the insertion of the word "voluntarily" in the subsection, together with the inquiry which the Board has always considered necessary to undertake in these cases. To this extent, the actual issue before the Board and the exercise which it must perform are essentially the same as those before the Board in a certification proceeding, and cases like J.A.K. Electrical Contractors Limited, [19771 OLRB Rep. May 275, must be read as saying no more than that; they are not inconsistent with the practical differences between the two alluded to in, for example, N.J. Spivak, supra. As the JAK. Electrical case says, at paragraphs:

As one deduces from reading the Remington Rand Limited case the Board applies the same standards to the evidence supporting an application for termination as it applies to petitions in opposition to a trade union that arise during the certification procedures. This position is outlined in Riel and Int. Bro. of Teamsters Local 230 (known as the Harry Haley & Sons case) 58 CLLC ¶18,106 where the Board described its approach in the following way:

"The Board has consistently held that like principles should be applied to the documents filed in support of applications by employees for termination of bargaining rights. In other words the Board has taken the position that even though a majority of the employees in the bargaining unit have signed a document purporting to be an expression of their wishes that they no longer wish to be represented by a trade union, there may be circumstances surrounding the origination or circulation of the document or documents in question which do not make it incumbent on the Board to direct a representation vote."

In fact the use of the word "voluntary" in section 49(3) seems to be a specific legislative direction to the Board to inquire into the history of ostensible wishes of those employees subscribing to an application for termination; (see P. Chapman Cartage Ltd. [19721 OLRB Jan. 356.). [emphasis added]

The Board's function, therefore, is still to "protect the fundamental rights of employees to make their own choice, as distinct from the choice of their employer, on the matter of selecting or rejecting a bargaining agent" (cf. Peel Block Co. Ltd., 63 CLLC ¶16,227).

33. The Board, therefore, must go on to consider the evidence of the manner in which this petition was circulated by its sponsors, and whether, based on that evidence, the Board has some reasonable assurance that the other employees who signed did voluntarily. In doing so, the Board must not lose sight, as indicated before, of the history of the present bargaining relationship, and the time at which this application has arisen. Nor is the Board prepared to conclude, as stated before, that the natural polarization and struggle for employee support which is characteristic of an economic confrontation renders it impossible for the employees to express their own wishes in a termination application. Indeed, the legislation, and in particular section 53(3) of the Act, contemplates just the opposite (see again the Ottawa Journal case, [19781 OLRB Rep. March 291 at paragraph 8), and ensures that the employees do not become "the forgotten people". Where the polarization is so intense, however, the Board must still be concerned that the signatures in support of a termination application be gathered in circumstances which permit the employees to feel with some comfort that management will not be made aware of which employees in the unit supported the efforts of the petitioners, and which of the employees did not. As in certification cases, the Board becomes concerned when "[t]he evidence taken as a whole.. .supports the inference that the employees of the.. .company would logically have assumed that management supported the petition, albeit in a tacit manner, and that the names of those refusing to sign the petition would become known to management" (Morgan Adhesives, [1975] OLRB Rep. Nov. 813, at paragraph 31). The question, in other words, is whether management would appear to the employees to be "co-sponsoring" the petition. As discussed, the Board is less inclined to draw this negative inference on a termination application than in a certification proceeding, with its "sudden change of heart", but the issue of voluntariness never disappears. No one would argue, to put the case in the extreme, that management could conduct its own opinion poll and file it in support of an employee's termination application. The issue which the Board in each case must grapple with is whether circumstances were such that employees would have had the feeling that that in effect was what was being done.

3. With these observations in mind, we turn to the evidence. The instant application was filed on June 6, 1986, and the signatures on the petition in support thereof were all obtained on either June 4th or June 5th. This petition was the second attempt by the applicant to terminate the bargaining rights of the union. The Board, differently constituted, convened a hearing into the voluntariness of the first petition on May 27, 1986. After spending most of that day hearing the evidence of the applicant with respect to the first petition, and after adjourning to set further dates for the continuation of that inquiry, the applicant Moore withdrew the first petition and application. Moore testified the first application was withdrawn because the petitioners were unrepresented and as the hearing progressed they felt unprepared and felt it advisable to withdraw, obtain legal assistance, and attempt to file a second application.

4. Our inquiry into the voluntariness of the petition before us must include consideration of the circumstances surrounding the first petition. No party suggested that it was inappropriate for the Board to so inquire into those circumstances. In similar circumstances in Sam Sniderman Radio Sales and Services Ltd., (unreported, Board File No. 0867-86-R, December 3, 1986) the Board, differently constituted, remarked as follows:

"The first question to address with regard to the petition is whether the first and second petitions ought to be considered interrelated. In our view they must. The second petition was created on the very day the application founded by the first petition was defeated at the Labour Board. Mr. Schmitt realized that because of the time limits under the Act, he only had two days to try again to terminate the Union's bargaining rights. By his own admission, his gathering of signatures on the second petition was rendered quite easy because of the ground work which had been laid on the first petition. Employees who had signed the first petition were more than willing to sign the second petition. Indeed, within a few hours, employees throughout the store knew what was going on and approached Mr. Schmitt to renew their efforts to bring the termination application by signing the petition. Clearly, the two petitions were related in the minds of the employees as well as the applicant. Thus, we must conclude that the evidence with respect to the origination and circulation of the first petition is essential to the proper assessment of the weight and effect of the second petition: Tn-Sure Products Ltd., 11970] OLRB Pep. June 324."

For similar reasons, the Board considered it appropriate to consider the circumstances surrounding both the first and second petition.

5. The attempt to terminate the bargaining rights of the respondent had its genesis approximately two years ago, as the respondent union was about to sign a collective agreement changing the benefits package for employees. At that time, in 1984, the applicant Moore convened an emergency meeting of fellow employees opposed to the change in benefits, to see if they could defer the signing of the collective agreement, but he was unsuccessful in his endeavour. Nevertheless, he remained committed to nullifying the benefits provisions in the collective agreement and to seeking the ouster of the union.

6. Moore was the prime originator and circulator of the first petition. On June 2nd both Moore and Gardner attended at a lawyer's office, where they were given blank copies of the petition which ultimately was signed and filed in this proceeding. Shortly after that meeting, Moore and Gardner met with the third person who collected signatures, Jeff Lidster, and together the three of them co-ordinated how the signatures ultimately obtained might be solicited. As all three of them indicated during their respective testimony, obtaining signatures in the second petition was very quick and very easy, as most of those signing the second petition had signed the firstpetition. To obtain the second set of signatures each of the three of them were assigned certain people to approach, and the petition was divided into three parts, so that each of the three could take a petition to have their assigned employees sign. The plan was then to reassemble the petition into its final form for forwarding to the Board.

7. We step back in time for a moment, to events which occurred several months before the first petition was circulated. At that time Moore composed and had typed a five page document comparing the new benefits under the collective agreement with benefits previously received by employees covered thereunder. As that document noted, Moore felt that the collective agreement was a poor agreement and that it "should now be corrected ... this can be accomplished with your support". In addition to ensuring that each employee in the bargaining unit received a copy of that document, Moore went to each employee's house to discuss its contents, in an effort to convince each employee that the collective agreement benefits provisions were less attractive for employees. Returning to the time of the first petition, when Moore spoke to people to obtain their signatures on that first petition, he discussed again the contents of the document he had circulated several months before, and which he had at the time discussed with each employee individually. Moore not only discussed the benefits package, but he also told the employees, prior to their signing the petition, that he had it from a "good source, a confidential source which he could not reveal, that if the union was ousted, the prior benefits package would be reinstated." As Moore himself testified, he was engaged in a type of salesmanship, just as the union had been in obtaining support, and he felt "the more buttered the corn, the sweeter the taste".

8. Moore did not reveal whether his "good source" was someone in management. The only reasonable inference, and we so find, is that employees would think the source was management, and Moore surely intended they draw that inference in making his statement. If he did not so intend, it is difficult to see why he made the claim, and why he testified that he made it as part of selling his package. Clearly, therefore, those employees whom Moore got to sign the first petition were concerned about the benefits package and those matters dealt with in the circular which Moore had mailed to them, which he had discussed in their homes individually with them, and which he had indicated a good, though confidential source told him would be reinstated when the union was ousted.

9. These conversations with employees, and Moore's attempts at salesmanship in order to sell the petition, occurred just prior to employees signing the first petition. When employees signed the second petition, there was virtually no discussion of the purpose of the petition or the benefits package. It was apparent that the shortness of time between the signing of the first petition and the second petition facilitated the obtaining of those second signatures and obviated the need for any further discussion. Employees were well aware Moore was circulating a petition in the work place, and were given to understand the second petition was necessary to properly process the petition and application.

10. Each person signed by Moore, at the time they signed either petition, was aware of Moore's statements about a "good source". In these circumstances we find that the signatures obtained by Moore do not represent the voluntary expression of the wishes of those employees, and as the discarding of those signatures means that less than forty-five per cent of the employees in the bargaining unit have voluntarily indicated their wish that the union be decertified, this application will be dismissed.

11. Moore was entitled to engage in salesmanship in the collection of signatures on the petition, provided his salesmanship remained within permissible bounds. The freedom of expression that employers or employees may enjoy does not mean any such expression is immunized from its natural repercussions. In the instant case, employees who signed the petition would perceive Moore as holding himself out as having some link or connection with management, and employees would thereby feel pressured into signing the petition. Moore himself implicitly admitted his technique was predicated upon creating the impression that he could somehow increase the likelihood, if not guarantee, that prior benefits would be reinstated. Either he lied to employees about his source, or he really has links with someone able to assess whether old benefits would be returned. Either scenario would mean employees perceived Moore as linked or allied with management, and the petition was "sold" on the basis of that perception. Employees would also likely think management had a direct interest in the decertification of the union, and was prepared to support that interest with the promise of reinstatement of certain benefits. In these circumstances we find that each person who was signed by Moore, knowing as they did of Moore's statement that he had it from a good source that the old benefits would be reinstated, did not sign voluntarily within the meaning of the Act. See J. & A. Cartage Limited, [1980] OLRB Rep. March 327 and N-J Spivak Limited, [1976] OLRB Rep. April 158.

12. We would as well dismiss this application on an alternative ground, as we are not satisfied with the evidence of the circumstances involved in the origination and circulation of the petition. Moore was a very unsatisfactory witness. During his evidence, he changed his story several times, once after a recess when he discussed his testimony with his counsel. Even after this discussion, Moore continued to give contradictory evidence about important aspects of the circulation of the petition and the obtaining of signatures. During cross-examination, Moore was initially conveniently forgetful, eventually admitting essential facts previously glossed over. In contravention of our exclusion order and direction to all participants that they not discuss with future witnesses evidence which had been led in the proceeding, Moore discussed with his subsequent witnesses the evidence which he had given, including his evidence on the critical issue of what he said to employees, when they signed the petitions, concerning the benefits and his claims about his "good source". Although we heard the evidence of those subsequent witnesses on that point, the weight we gave to that evidence was accordingly limited. We found the evidence in support of the petition to not be sufficiently credible for the petitioners to have met their onus in convincing the Board of the voluntariness of the petition, and on this alternative ground we would also dismiss the petition.

13. The applicant has failed to establish that not less than forty-five per cent of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union, and accordingly this application is dismissed.

DECISION OF BOARD MEMBER J. P. WILSON;

1. I dissent.

2. While I agree with the facts as laid out in the majority decision, I feel that other matters must be taken into consideration.

3. Previous Board cases have shown that it is not fatal to an application for decertification that other applications have been made in the past and for various reasons have failed; for example Reynolds and UFCW L. U. 725 (Title Stores) 0366-85-R (unreported), Pat Steele and Canadian Union of Brewery Flour, Cereal, Soft Drink and Distillery Workers L. U. 304 (Canada Trustco Mortgage Company) 2870-84-R (unreported).

4. Previous failed applications in my view tend to indicate a continuing unrest in a bargaining unit and that that is what we have in this case.

5. Such a conclusion is borne out by the figures involved in a bargaining unit of 35 people, the first petition had the signatures of 22 people and the second had 18.

6. It is apparent that the circulation of each petition and their subsequent presentation to the Ontario Labour Relations Board were badly handled. It is equally apparent that a high percentage of the employees in the bargaining unit wanted a change.

7. It is not material why the members wanted a change, nor is it entirely clear. Mr. B. F. Moore, the applicant, pressed his view that the Union had negotiated an unsatisfactory benefits clause in the Union/Company agreement and that that was the key issue. Neither Mr. Lidster or Ms. Gardner endorsed that view. One is left with the impression that there could have been many reasons for the members to want decertification of the Union and that some of them could have stemmed from the original certification of the Union.

8. Be that as it may, Mr. Moore apparently tried to convince the members that the issue of benefits was key and the application(s) should reflect that fact. The union holds, with justification, the view that Mr. Moore "oversold" his benefits arguments to the members thus swinging them to his view that the Union should be decertified. Also, that he had tacit approval from an unnamed source that the previous benefit package would be restored if the Union was decertified. In making such remarks, to at least one person, Mr. Moore was most unwise.

9. At the hearing, Mr. Moore admitted his "salesmanship" and in his evidence seriously damaged his credibility with conflicts in his testimony. Just as an overly zealous collector in a certification can have the cards he collected put at risk, so too can an applicant for decertification.

10. The difference in this application I feel is that the so called "benefits package" seemed to be prime importance to only Mr. Moore and that others backed his application for diverse reasons but blindly followed Mr. Moore in his benefits package arguments.

11. Mr. Moore in my view followed an unwise path. However, the fact that he was wrong should not rebound to the detriment of the other members of the bargaining unit who may well have signed the petition for other reasons.

12. With two failed applications for decertification and a history of unrest in the bargaining unit it would not be unlikely that a further petition could appear at a later date unless the Union mends its fences.

13. In a case such as this, I feel that it makes good Labour Relations sense to order a vote.