Ontario Labour Relations Board
[1987] OLRB Rep. April 518
2844-86-R Bruno Fiorini, Applicant v. United Steelworkers of America District #6, Respondent v. Rembrandt Jewelry Manufacturing, a Division of Johnson Matthey Limited, Intervener
BEFORE: Judith McCormack, Vice-Chair, and Board Members I. M. Stamp and C. A. Ballentine.
APPEARANCES: Bruno Fiorini and Hugh MacKenzie for the applicant; Brian Shell, Brando Paris and Ruben Heikura for the respondent; no one appearing for the intervener.
DECISION OF THE BOARD; April 22, 1987
This is an application under section 57 of the Labour Relations Act for a declaration terminating the bargaining rights of the respondent union with respect to a unit of full-time employees employed in a jewelry manufacturing plant.
The respondent was certified to represent these employees in October of 1985. Since that time, the union and the employer have been unable to effect a collective agreement. A conciliation officer was appointed on June 3, 1986. However, more than six months have elapsed from that appointment and the respondent concedes that the application is timely.
There were thirteen people in the bargaining unit as of the date of the application. The applicant filed three documents purporting to be signed by forty-one employees signifying that they no longer wish to be represented by the union. These documents were filed by February 3, 1987, the terminal date fixed for this application. If the signatures on the petition documents are voluntary, they would represent not less than forty-five per cent of the employees in the bargaining unit. In these circumstances, the Board undertook its usual inquiry into the voluntariness of the petition.
Bruno Fiorini gave evidence with respect to the origination, preparation and circulation of the petition. He is employed by the intervener employer as a jeweler and he has some eighteen years of experience in his field at a number of different companies. Until one and a half years ago, he was employed as a supervisor in this plant.
In March of 1986, Mr. Fiorini determined that he did not wish to pay dues to the union as he was of the view that the intervener was treating employees fairly. He then sought out legal assistance.
The evidence with respect to how he arrived at the offices of his current counsel is a little unclear. Mr. Fiorini first described to the Board a somewhat confused sequence of events involving a phone call to a lawyer, followed by a call to the lawyers referral service and subsequently a call to the lawyer he ultimately retained. In cross-examination, he initially admitted that e had seen the telephone number of the lawyers referral service posted on the bulletin board at the plant and then denied it.
In any event, he eventually attended at the offices of his counsel in March of 1986. At that time he was advised that an attempt to terminate the union's bargaining rights would be untimely and was told to come back the following November.
Mr. Fiorini attended at his lawyer's offices again in November, 1986, at which time he provided his counsel with a retainer and was given a number of identical petition forms on which is subsequently collected the signatures of other employees. On each of these forms there was a leading in English as follows:
We, the undersigned employees of Rembrandt Jewelry Manufacturing Limited state that we no longer wish to be represented by the United Steelworkers of America and desire that the right of that union to bargain on our behalf be terminated.
Mr. Fiorini testified that he could not read English and that this was true of a number of other employees. When this fact emerged in cross-examination, he told the Board that he had explained the purpose of the petition to those employees. He had not mentioned this in the course of the Board's inquiries despite a number of questions directed at conversations with employees at the time the petition was signed.
On Friday, November 21, 1986, Mr. Fiorini arranged to book a banquet room at a pizzeria several miles from the plant. At lunchtime that day, he walked around the lunchroom telling employees that he was holding a meeting in the banquet room the following Monday after work for employees who wanted to get rid of the union. He made a similar circuit of the lunchroom on Monday at the lunch break. While members of management eat their lunch in this lunchroom, Mr. Fiorini testified that none were present when Mr. Fiorini was advising employees of the meeting. He was adamant that this notification to employees was the first time that he had expressed his anti-union views or discussed these matters with any employees. He also testified that he had not discussed the meeting or the application with members of management.
At the time appointed for the meeting, Mr. Fiorini placed a blank petition form on a bar in the banquet room and stood behind it. As employees came in, they signed the forms immediately. There was no discussion or debate by employees at the meeting and there was no campaigning by Mr. Fiorini in advance. He also testified that this was an individual project on his part. After employees signed, they sat down at tables and ate pizza. Some thirty-four employees signed at this time over a period of one-half hour to forty-five minutes.
The following day, seven more employees approached Mr. Fiorini at lunchtime, asking to sign the paper. Mr. Fiorini arranged to meet them after work at a parking lot across the street from the intervener's premises. It appears that this parking lot is visible through a large window in the factory. All seven employees signed at that time.
Much was made of the fact that Mr. Fiorini used three forms and employees signed on the second and third form before all the spaces were filled on the first form. Mr. Fiorini was not sure in which order employees had signed but denied vehemently that more than one employee had signed the forms at the same time. He assured the Board that he had witnessed each and every signature although he did not sign his name as a witness beside each signature until he was advised to do so at his lawyer's office. Prior to that he had signed at the top of the document and at the bottom with an arrow connecting his two signatures.
Mr. Fiorini was not a very convincing or candid witness. He was frequently unresponsive to questions asked in cross-examination and changed his answers on a number of occasions. During the course of the hearing, he also appeared to be structuring his evidence in the interests of his case as he perceived them from time to time.
Nevertheless, it was also clear that he had intermittent moments of candour. Having had an opportunity to assess his evidence under vigorous cross-examination, we are satisfied at least that he did in fact witness all the signatures on the petition.
However, we have other reasons for concern. As we noted previously, Mr. Fiorini was a supervisor in this plant until approximately one and a half years ago. At that time, a new owner took over the operation and Mr. Fiorini requested that he no longer be a supervisor.
When he became a member of the bargaining unit, his salary was maintained at the level he had as a supervisor. He also appears to have more flexibility in his working hours than most other employees as he was able to take long lunch hours to meet with his lawyer on at least two occasions. Seven of the people who signed the petition were supervised by Mr. Fiorini when he was a supervisor. Indeed, we conclude, in spite of Mr. Fiorini's prevarication on this point, that all of the people he formerly supervised signed the petition.
Mr. Fiorini often eats lunch with the other supervisors because of his former position, although he also eats lunch with members of the bargaining unit as well. When Mr. Fiorini was a supervisor, on occasion he was sent by the plant manager to other jewelry manufacturers to provide advice and assistance. After he became a member of the bargaining unit, he and his own supervisor, Reno Pontello, continued to make similar trips. Mr. Fiorini agreed that he and Mr. Pontello were "good buddies". Mr. Pontello relies on Mr. Fiorini's expertise and experience, and they frequently eat lunch together in the plant lunchroom. Sometimes three other friends of Mr. Fiorini who are in the bargaining unit eat with them. Occasionally Mr. Fiorini and Mr. Pontello go out to lunch together, a fact which is known to other employees. Mr. Fiorini agreed that other employees saw him as an employee with particular experience and expertise.
Under section 57 of the Labour Relations Act, the Board must satisfy itself that the petition supporting a termination application represents the voluntary wishes of those who signed it. The Board's approach is described in Grove Park Lodge, [1980] OLRB Rep. Feb. 235 at p. 240:
The Board has always been sensitive to the particular vulnerability of employees arising out of the employer-employee relationship. As stated in the Pigott Motors (1961) Ltd. case, 62 CLLC ¶16,264:
There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. One of those facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. 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 vulnerable to influence, obvious or devious, which may operate to 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 in 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 accurately reflects the voluntary wishes of the signatories.
and in the Peel Block Co. Ltd. case, 63 CLLC ¶16,227:
It is a function and duty of this Board to be vigilant and scrupulous in its concern 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.
See also CCH Canadian Limited, [1975] OLRB Rep. Jan. 19. which involved an application for termination of bargaining rights.
The Board has before it, in the present case, a cogently-worded statement of desire signed by almost the full complement of the bargaining unit. The Board must still be satisfied, however, that the motivation behind such a statement was of a truly voluntary nature; that is, as the above cases indicate, that the employees are not simply identifying themselves with the choice of their employer, out of fear of antagonizing their employer, or fear or reprisal, or for whatever reason. This is a fundamental duty which the Board owes to the employees themselves, and is made a pre-condition under section 49(3) [now section 57(3)] of The Labour Relations Act to its power to direct the holding of a representation vote.
As the Pigott Motors case, supra, makes clear, so vulnerable are employees to employer influence that the influence need not even be created by employer design. The Board in a long line of cases has refused to accept as voluntary a statement in opposition to a trade union signed in circumstances where the employees could reasonably believe that their failure to sign would come to the attention of management. In the Morgan Adhesives of Canada Limited case, [1975] OLRB Rep. Nov. 813, for example, the Board stated at paragraphs 30 and 31:
The finding of the Board is not intended to imply collusion or other conscious or deliberate improprieties on the part of either the objectors and/or the respondent company. There is no evidence before the Board which would support such a finding.
The evidence taken as a whole however, supports the inference that the employees of the respondent 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.
In carrying out its statutory duty, the Board is at the same time conscious that it must not be overprotective of employees' interests to the point where its evidentiary requirements become an unwitting trap for those very employees trying to express themselves. At all times a balance must be struck.
In Domus Building Cleaning Co. Ltd., [1986] OLRB Rep. March 319, the Board noted the significance in this context of a petitioner's personal relationship with a member of management at p. 322 (and see as well Patro D'Ottawa, [1984] OLRB Rep. May 741):
The Board has indicated in a number of cases that a petitioner's personal relationship with a member of management and the awareness of this relationship by employees in the bargaining unit are factors to be considered in assessing whether or not the signatures expressed the true wishes of the employees who signed. See for example Labatts Ontario Breweries, [1985] OLRB Rep. March 433; International Beverage Dispensers and Bartenders Union, Local 280, [1981] OLRB Rep. June 690; Ottawa Commercial Realties Limited, [1983] OLRB Rep. Nov. 1877; Jean Marc Joanisse, [1983] OLRB Rep. Jan. 92.
There was no evidence of any impropriety or wrongdoing on the part of the employer in the facts before us. However, we find it likely that employees would reasonably perceive Mr. Fiorini as closely associated with management and would be concerned that management would come to know whether they had signed the petition or not. He is a former supervisor who retains an anomalous position in the plant and who is known to have a close working relationship with at least one other supervisor. This identification with management would be particularly strong for those employees previously supervised by Mr. Fiorini.
We note as well that the pattern of employee support for the termination petition was unusual. There appeared to be none of the campaigning or discussion which usually proceeds this kind of application. Indeed, there was no discussion of the application or petition with any employees by Mr. Fiorini prior to the meeting except for the simple notification of the meeting. There was no discussion or debate at the meeting and employees signed immediately upon entering the banquet room.
There are a number of possible explanations for this atypical pattern of events. However, in the context of the evidence before us, we find it consistent with our conclusion that employees may well have signed the petition because they were concerned management would come to know of their decision one way or another, rather than, for example, an instant groundswell of anti-union sentiment.
Our concern in this regard is reinforced by the patent unreliability of Mr. Fiorini's testimony, which was the only evidence tendered by the applicants. In addition to the defects in the manner of his testimony described earlier, there were a number of unexplained inconsistencies in his evidence, reflecting a gap between his conduct and his self-professed ignorance of labour relations.
While each of these points in isolation may not be insurmountable, their cumulative effect is to cast doubt on the voluntariness of the petition. Taking the evidence as a whole, we are not satisfied that the applicants have discharged the onus of proving on the balance of probabilities that the petition represents the voluntary wishes of employees.
This application is dismissed.