Eugene Marks v. United Food and Commercial Workers International Union, Local 617

[1987] OLRB Rep. June 872

0591-86-R Eugene Marks, Applicant V. United Food and Commercial Workers International Union, Local 617, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. H. Wightman and C. A. Ballentine.

APPEARANCES: Barry B. Fisher for the applicant; Bernard Fishbein and John Slaney for the respondent.

DECISION OF THE BOARD; May 29, 1987

[1]. This is a timely application under section 60 of the Labour Relations Act ("the Act") for a declaration terminating the bargaining rights of the respondent trade union for a unit of employees of Jacmorr Manufacturing Limited. Subsections (1) and (3) of section 60 provide as follows:

(1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.

[2]. When this application came on for hearing, counsel furnished the Board with the following Agreed Statement of Fact, paragraph 7 of which defined a preliminary question on which he parties wished the Board to rule:

AGREED STATEMENT OF FACTS

1. The United Food and Commercial Workers' International Union ("the Union") filed an Application for Certification for the employees of Jacmorr Manufacturing Limited ("the Company") on or about October 22, 1985 (OLRB File No. 1829-85-R).

2. A number of events occurred that caused the Union to file a number of Complaints under Section 89 of the Act as well as request that the Board invoke Section 8 of the Act to certify the Union in the event that the Union's Application for Certification was not otherwise successful.

3. As a result of settlement discussions initiated by the Board, the parties agreed to have the membership evidence filed by the Union and the schedule of employees filed by the Company examined by an independent impartial person to determine whether the Union had filed sufficient membership evidence to be certified. The parties agreed Susan Ballantyne, Barrister and Solicitor, would conduct such examination. Ballantyne did so and she concluded "... that a majority of the employees in the agreed bargaining unit were members of the Union". Attached as Exhibit 1 is a copy of the Affidavit of Susan Ballantyne.

4. Following this examination by Susan Ballantyne on November 7, 1985, the Company and the Union and Gary Meinsinger and Mark Marchand, who were representatives of employees who had filed a Statement of Desire in opposition to the Union's Application for Certification ("the Petitioners"), entered into Minutes of Settlement of all outstanding matters and Board proceedings, which provided, inter alia,:

"The Company agrees to recognize the Union as the sole and exclusive bargaining agent for all employees of the Respondent in Kitchener, Ontario, save and except foremen, those above the rank of foreman, office, clerical and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period."

and:

"The Petitioners herewith agree to withdraw their Statements of Desire filed in opposition to the Union's Application for Certification in Board File No. 1829-85-R."

The Minutes of Settlement were dated November 7, 1985. A copy of these Minutes of Settlement is attached as Exhibit 2.

5. Eugene Marks, the Applicant herein, was one of the employees involved in the circulation of the Statement of Desire and was a witness to the signing of a number of employees.

6. The parties agree that by November 7, 1985 the Union had already obtained and filed acceptable membership evidence for a majority of the employees in the bargaining unit.

7. The preliminary issue to be decided by the Ontario Labour Relations Board is whether the Statement of Desire initially filed in the Application for Certification can now be raised by Eugene Marks, the Applicant herein, as relevant to whether or not the Union was entitled to represent the employees in the bargaining unit on November 7, 1985, within the meaning of Section 60 of the Act. If the Board determines that it should consider this evidence, then the Board shall conduct its customary inquiry into the voluntariness and relevance of the Statement of Desire at another date.

The parties also agree that the notice of the certification application in Board File 1829-85-R was given to employees by postings in the workplace of notices in Form 6. Those notices told employees that the Board's hearing of the application would take place on November 8, 1985, in a Board Room on the sixth floor at 400 University Avenue, Toronto. There is no evidence of what took place there, if anything, on that day. There is no record either that a formal hearing took place or that the Registrar gave anyone notice of cancellation of that hearing. The decision granting leave to withdraw the certification application in Board File 1829-86-R is dated November 13, 1985.

[3]. The "Statement of Desire" referred to in the Agreed Statement of Fact consists of three

pages. The top of each page bears the following handwritten notations:

Oct. 23/85

We, the undersigned employees of Jacmorr Mfg Ltd., do not wish to be represented by the United Food and Commercial Workers Union International;

Signed Witness

A number of signatures appear below the "Signed" and "Witness" headings on each page. These documents remained in the Board's file with respect to the certification application after that application was withdrawn; they were still in the file on the terminal date in this application.

[4]. Counsel for the respondent argued that the "Statement of Desire" or "petition" cannot be raised by the applicant in this application. The several grounds on which he based this argument can be organized as follows:

(a) The agreed fact that a majority of employees in the bargaining unit were members of the respondent when the voluntary recognition agreement was signed is a conclusive defence to this application;

(b) A petition is irrelevant in an application of this kind

(i) because a petition can have no effect other than in the certification proceedings in which it is filed;

(ii) because a petition only "casts doubt" on membership evidence and therefore, as a union need not comply in an application of this kind with the strict requirements which are imposed on membership evidence in a certification application, the petition cannot influence the result;

(iii) because an application under section 60 is concerned with the question of representational authority, not membership, and a petition is not evidence on the question of representation;

(c) This petition cannot be relied upon on this application

(i) because the petition was withdrawn and cannot be revived, particularly by someone whose signature as a witness appears on the document;

(ii) because the petition was withdrawn as part of a settlement which Messrs. Meinsinger and Marchand had ostensible authority to make on behalf of Mr. Marks and others;

(iii) because the question of representation raised here is the same question that was scheduled for hearing by the Board on November 8, 1986, in the certification application, and this applicant cannot complain about the way that question was resolved at that time if he did not attend at the place and time set out in the Notice given to the employees.

Before we set out our assessment of these specific arguments, we should first make some observations about certification proceedings.

[5]. Any employee who may be in the bargaining unit ultimately found by the Board to be appropriate is entitled to participate as a party in the hearing of a certification application and to address evidence and argument to any matter relevant to the application: Tektron Equipment Corporation, [1983] OLRB Rep. Nov. 1932. The exercise of that right at the time and place appointed by the Board for hearing of the application is subject to only two restrictions. The first is that if the interested employee intends to allege that any person has engaged in improper or irregular conduct, section 72 of the Board's Rules of Procedure ("the Rules") requires that he or she must file written particulars of the alleged conduct at the earliest opportunity prior to the hearing date. The second is that if the employee proposes to rely on evidence that employees in the unit oppose certification of the applicant, that evidence must comply with section 73 of the Rules. That section requires that evidence of the objection by employees to certification of a trade union be in writing and filed by the terminal date for the application. Written or documentary evidence of employee objection to certification is usually called "a petition" or "petition document(s)", even though the word "petition" almost never appears in such documents. Despite the literal meaning of this common name for such a document, its function in certification proceedings is as documentary evidence and not as either a supplication or a formal pleading.

[6]. If an employee wishes to rely on petition documents as evidence of the wishes of those who signed them then, in addition to the requirement that the documents be filed in a timely manner, section 73 of the Rules and the Board's jurisprudence together also require that, at the hearing of the application, evidence must be adduced of witnesses who, from personal knowledge and observation, can describe the circumstances concerning the origination of the petition and the manner in which each signature thereon was obtained. No effect will be given to the petition documents unless this evidentiary onus is discharged and the Board is satisfied, on all the evidence before it, that the signatures on the petition are likely to represent a voluntary expression of the wishes of the objecting employees who signed it. The person who filed the petition is usually the person who presents that case, but he or she is not the only employee with standing to do so. It is important to note that the Board's rules do not stipulate that the person who actually filed a particular petition document with the Board is the only person who can seek at hearing to rely on that petition document or to introduce the evidence necessary to satisfy the evidentiary onus with respect to that document. Any objecting employee who wishes to establish that the statement in a petition reflects the wishes of the signatories is entitled to put that case to the Board provided that, in applications to which section 73 of the Rules applies, the petition has been filed by the terminal date for the application.

[7]. The effect given to "petitions" in certification proceedings was discussed in Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138:

15. The object in certification proceedings is to determine whether a majority of employees in a unit appropriate for collective bargaining wish to be represented by the applicant trade union in their relationship with their employer.

The Legislature's choice of membership evidence as the primary basis for the certification decision recognizes the obvious correlation between a desire for trade union representation and the act of joining a trade union. Any uncertainty inherent in equating the two is balanced by striking a confidence level of fifty-five per cent membership at and below which the appearance of majority support for trade union representation must be confirmed by a representation vote. When there is satisfactory evidence that over fifty-five per cent of the employees in the unit are members of the applicant, the Act authorizes certification without a vote. In giving the Board a discretion to order a vote even when over fifty-five per cent membership is demonstrated, the Legislature recognized the possibility that circumstances other than the number of members in the unit might, in a particular case, make trade union membership seem less reliable as a measure of an employee's desire for trade union representation.

17. If a petition is shown to be the voluntary expression of the wishes of its signatories, the effect then given to it depends on the extent to which it casts doubt on the significance of membership in the applicant as evidence of the employees' desire for representation by the applicant.

…the signature on the petition of an employee who is a union member casts doubt not on that employee's status as a member, but on the otherwise reasonable inference that the employee's membership in the trade union reflects a desire for representation by that trade union in collective bargaining with his employer. The evidence of an employee's membership, that is to say, the inference which otherwise reasonably follows from proof that the employee is a member, is "clouded" in that sense by the employee's subsequent signature on a voluntary petition. If the membership evidence which remains unclouded would not alone be sufficient to support certification without a vote, then the Board ordinarily exercises its discretion under section 7(2) by ordering a representation vote.

In short, in determining whether to exercise its discretion to grant certification without a vote, the Board considers whether the fact that over 55% of employees were then members of the applicant is a reliable indication as at the assessment date selected under clause 103(2)(j) that a majority of the employees wish to be represented by the applicant in collective bargaining. In that connection, the Board relies only on each employee's last voluntary signification of wishes as at the assessment date.

[8]. Turning from certification applications to applications under section 60 of the Act, the issue in section 60 applications is whether the respondent union "was entitled to represent the employees in the bargaining unit" at the time the employer recognized it as the exclusive bargaining agent for those employees. Subsection 60(3) puts the onus of establishing that entitlement on the union and the employer. The Act does not expressly prescribe the circumstances in which a union which has not been certified as exclusive bargaining agent for a unit of employees can nevertheless be said to be "entitled" to represent them. It is obvious that the situations in which such an entitlement can be found are not limited to those in which bargaining rights arise by operation of subsection 1(4), section 62 or section 63, since the Act contained the equivalent of section 60 before the predecessors of those provisions were added to it. The general scheme of the Act is that a union will be entitled to represent a unit of employees in collective bargaining with their employer if a majority of employees in the unit wish to be so represented by that union. The Board has interpreted the words "entitled to represent the employees in the bargaining unit" in a manner consistent with that general scheme.

[9]. In Spring Plastering Limited, [1967] OLRB Rep. Dec. 887, the Board observed that:

10. ... on an application for termination of bargaining rights under section 60, all the parties to the collective agreement must do is establish that the union was "entitled to represent employees" at the time the collective agreement was entered into. Evidence that the trade union was entitled to represent the employees may well take a different form from the evidence of membership required on an application for certification. It must be remembered that any documentary evidence of the right of a trade union to represent employees was not necessarily prepared with a view of applying for certification and accordingly could reflect the desire of the employees to have the union represent them without complying with the Board's stringent tests of membership.

[emphasis added]

In Gilbarco Canada Ltd., [1971] OLRB Rep. Mar. 155, the Board said:

16... the requirements of section 45a [now 60] of The Labour Relations Act, do not require membership. Section 45a speaks of representation as opposed to section 7 of the Act which refers to membership ... Accordingly, in assessing applications under section 45a the requirements of membership which obtain in applications for certification do not obtain although membership may be some evidence of representation.

[emphasis added]

In Gilbarco, the Board found that the union was entitled to represent a unit of employees because a majority of them had ratified a proposed collective agreement between it and their employer. In York County Quality Foods Ltd., [1984] OLRB Rep. Sept. 1340, the Board found that the onus imposed by subsection 60(3) had been satisfied by evidence that the collective agreements under attack had been ratified at a meeting of employees called and held in such a manner that the Board concluded that the ratification reflected the will of the majority. It is clear from these cases that, for the purpose of section 60, the union's entitlement to represent employees at a particular time turns on whether at that time a majority of them wished to be represented by it in collective bargaining with their employer. The question whether or not the employees were members of the union at the relevant time (in fact or by statutory definition) is only relevant because an employee’s membership (or application for membership) in a trade union is evidence of the employee's wishes with respect to representation by that trade union.

[10]. In Sigal Shirt Company Limited, [1982] OLRB Rep. Nov. 1718, the voluntary recognition attacked under section 60 was, as in this case, one of the provisions of Minutes of Settlement entered into after the union had filed unfair labour practice complaints and an application for certification under sections 7 and 8 of the Act. The applicant for termination acknowledged that a majority of employees in the unit in question had signed applications for membership in the respondent union by the time recognition was granted. No petition had been in circulation before recognition was granted, nor did the applicant initially offer any evidence which would have rebutted or clouded the otherwise reasonable inference that, as at the relevant date, those who had applied for membership in the union before that date wished to have that union represent them in collective bargaining with their employer. While acknowledging that "this amount of support would be in the normal course lead the Board to conclude that the respondent was entitled to represent the employees in the bargaining unit", the applicant nevertheless requested that the Board exercise its discretion under subsection 60(2) to hold a representation vote. It is not apparent from the Board's decision what grounds for so doing were argued by that applicant. The Board observed that "the applicant has not offered the Board any evidence on which the Board could act to exercise its discretion and order a vote pursuant to section 60", declined to do so and dismissed the application.

[11]. The applicant in Sigal Shirt Company Limited, then applied for reconsideration and, in support of that application, filed a document on which a number of signatures appeared below a statement that the undersigned employees were signing "this Petition in support of an application… for reconsideration of [the dismissal of the application] and in the alternative … for a reconsideration by the Board for a further [sic] representation vote to determine whether the [union] has sufficient support to represent the employees of the proposed bargaining unit." In its decision dismissing this application for reconsideration (reported at [1982] OLRB Rep. Nov. 1720), the Board made these observations:

5... .The central issue in section 60 is whether, at the time of the entering into of the recognition agreement, the respondent was entitled to represent the employees in the bargaining unit. From the agreed facts before the Board it was clear that such entitlement existed on June 25, 1982. Indeed, it was conceded by the applicant at the previous hearing in this matter that the respondent's support as it existed on June 25, 1982 was not being challenged. Although the petition is undated, the text indicates that it was composed and circulated sometime after the Board's decision in this matter. It does nothing to unsettle the Board's conclusion regarding the strength of the respondent's support as of June 25, 1982.

6. With respect to the ordering of a vote, the Board has discretion under section 60(2) to hold a representation vote before disposing of an application under section 60(1). This section does not give the Board a general power to resort to a Board-supervised vote as an aid in resolving a question of employee wishes where the evidence shows that at the relevant time (June 25, 1982) the respondent was entitled (in this case majority support) to represent the employees in the bargaining unit. The signatories to the petition may well have wished to show they no longer support the respondent. However, this has no effect on a section 60 application in that the relevant time for determining the entitlement of the respondent to representation rights is the date when the recognition agreement was entered into. A representation vote can only be ordered where there is a lack of certainty as to the entitlement as of that date and a vote is necessary to resolve that uncertainty....

The very careful language of these paragraphs implicitly recognizes that a petition which had been in existence at the relevant time, and therefore spoke to the wishes of employees as at that time, might have unsettled the conclusion regarding the respondent's support which would otherwise be drawn from evidence that a majority of employees in the unit were members at that time.

[12]. Neither these nor any of the other cases cited by counsel for the union support the proposition that evidence that a majority of employees in the unit were members of the respondent union at the time the employer granted it recognition is conclusive of the question whether at that time the union was "entitled to represent the employees in the bargaining unit" for the purposes of section 60. We are not aware of any decision which supports that proposition. The analysis in Trent Metals Limited, [1979] OLRB Rep. Aug. 827, seems inconsistent with it. In any event, the proposition is inconsistent with the general scheme of the Act, and we reject it. Evidence of their membership in a trade union is rebuttable, not conclusive, evidence of the desire of employees to be represented by that trade union in collective bargaining with their employer.

[13]. A voluntary petition is documentary evidence of the desire of its signatories with respect to representation by the union named in it. If it was in existence at the time as of which a respondent trade union was granted voluntary recognition, such a petition is relevant evidence with respect to the issues of representational entitlement in an application under section 60. The mere fact that the petition may also have been filed in a previous proceeding does not itself affect the petition's admissibility or relevance. The evidentiary value of a combination application for membership and receipt card is adversely affected by its having been filed in a previous proceeding only if and to the extent that it became the subject of some determination in that proceeding. The same is true of any other documentary evidence of membership or of employee wishes, including a petition.

[14]. Unless they had purported to act on his behalf in making that agreement and had had actual or ostensible authority to do so, the agreement of Messrs. Meinsinger and Marchand to "withdraw" what is referred to in the Minutes of Settlement as "their Statements of Desire" would not impose on the applicant (or any other employee) any contractual obligation not to make use of the petition evidence filed with the Board. There is no suggestion that Messrs. Meinsinger and Marchand had actual authority to act on the applicant's behalf, nor is the appearance of the applicant's signature on the petition, whether as witness or otherwise, a sufficient basis for ostensible authority. An employee's signature on a petition signifies nothing more than his or her agreement with the statement set out in the petition document. Unless that statement expressly so provides, an employee's signature on the petition does not confer general representational authority on the person who solicits the signature or on the person who later files the petition or on any employee who may attend at hearing in person or by representative to prove that the petition represented the wishes of the signatories at the time they signed. No one who acts in any of those roles thereby has ostensible authority to speak in the names of the signatories in matters affecting their rights.

[15]. Furthermore, it does not even appear from the Minutes of Settlement that Messrs. Meinsinger and Marchand purported to act on behalf of anyone but themselves. While their signatures appear below the words "for the Petitioners" on the last page of the Minutes of Settlement, the word "Petitioners" in this context is merely the style assigned to Messrs. Meinsinger and Marchand and in the title of the Minutes, where they are described this way: "Gary Meisinger and Mark Marchand (hereinafter referred to as the 'Petitioners')".

[16]. It follows that the settlement which we are asked to enforce against the applicant is not one by which the applicant is contractually bound. It does not necessarily follow, however, that we should ignore the settlement agreement in dealing with this application. We still have to consider the fact that the agreement was in settlement of proceedings in which the Board would otherwise have had to deal with the issue now raised before us: the effect of this petition on the applicant's claim to the right to represent employees in the subject unit at the time the settlement was made. The petition would have been given no effect in that regard unless it were found to be voluntary. The voluntariness of the petition was clearly a matter of controversy. The trade union was alleging the it the employer had committed unfair labour practices so inimical to the free expression of employee wishes as to warrant certification without a vote under section 8 of the Act. Proof that such unfair labour practices had occurred before or while the petition circulated would have precluded a finding that the petition was voluntary.

[17]. Had the hearing of the certification application gone ahead, the issue of the voluntariness of the petition would have been determined on the evidence and argument put before the Board by the trade union, the employer and any employees who actually attended and participated in the hearing. Employees duly notified of the hearing who did not attend or participate in it would nevertheless have been bound by the result of the hearing. Had the parties and all employees present for the hearing agreed that the petition was not voluntary, the Board could have acted on that agreement without inquiring into the issue. Except on the ground that the agreement was collusive and fraudulent, no employee who had had notice of the hearing could subsequently have challenged the result on any ground premised on the voluntariness of the petition. When a factual issue which has clearly arisen in proceedings before the Board is settled by agreement on all those who would otherwise have participated in the litigation of that issue, the efficacy of the settlement should not depend on whether the Board has acted in reliance on the agreed fact, as long as the participants have so acted.

[18]. When the settlement agreement in question here was made, the voluntariness of the petition was a matter which had to be negatived before either the employer or the union could prudently enter into a voluntary recognition agreement. Otherwise, both parties would forever have been vulnerable to the argument that, by analogy with the reasoning in Trent Metals Limited, supra, voluntary recognition in the face of voluntary petition activity constituted employer support which should attract application of sections 13 and 48 of the Act even after the expiry of the one year period in section 60. The settlement agreement in this case provides that "... any matters that were raised or could have been raised over any matter to date are hereby fully and finally settled." The voluntariness of the petition is clearly a matter which had been raised and which the agreement purported to settle by effectively treating the petition as not voluntary.

[19]. Counsel for the applicant conceded in argument that the settlement agreement would have precluded his relying on the petition now if that agreement had been made by all those in attendance on the morning of the hearing after the expiry of the customary half hour from the time of hearing specified in the Board's notices of hearing. He argued that this agreement did not have the effect because it had been made on the day before the scheduled hearing, when it could not be known who would attend the hearing and it could not be said, therefore, that the agreement had been made by all those would have participated in the litigation of the issue had the hearing proceeded.

[20]. For reasons which should be clear at this point, the parties to the settlement agreement ought to have delayed finalizing it until they could be sure that they had the concurrence of every employee who would have participated in the litigation of the issues to be settled. They could only have been sure of the identity of those employees on the scheduled hearing date after the expiry of the customary half hour from the time of hearing specified in the Board's notices of hearing. By concluding the agreement some hours before that time, they left open the possibility that there might be some employees as against whom the Board would not later consider the issue of the petition's voluntariness "settled". Does the applicant Eugene Marks fall into that category?

[21]. The hearing of November 8, 1985, was never cancelled. There is no suggestion that Mr. Marks (or anyone else) attended at the Board on that date intending to assert the voluntariness of the petition. The very short period of time between the settlement and the time of the scheduled hearing together with the very long period between then and the filing of this application are inconsistent with Mr. Marks' having then had the intention to independently assert the voluntariness of the petition. Having regard to the rationale for a concession that the settlement agreement would have precluded Mr. Marks' asserting the petition to be voluntary in this application if that agreement had been made at the appropriate time on the following day, at the conclusion of argument it appeared to us that the timing of the agreement was a distinction without a relevant difference as it applied to Mr. Marks. In the complete absence of any claim that he had sought, or even intended, to participate in the hearing of the certification application independently of Messrs. Meinsinger and Marchand, we concluded that, as against him, the settlement agreement should have the same effect as if it had been made at hearing after the period of grace had expired by all those then present. This meant that the petition should be considered involuntary and, therefore, given no weight in determining employee wishes as of the time voluntary recognition was granted.

[22]. Accordingly, we ruled orally that the petition would not be relevant in this application to the question whether the union was entitled to represent employees in the bargaining unit. As the implications of the facts recited in paragraph 3 of the parties' agreed statement of fact were uncontroverted if the petition was treated as irrelevant, we dismissed the application with reasons to follow. These are our reasons for that decision.