[1989] OLRB Rep. February 133
2937-87-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Fram Canada Inc., Respondent v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. A. Correll and D. A. Patterson.
APPEARANCES: L. A. MacLean, John Moszynski, Wayne McKay and Glen Myers for the applicant; Joseph Carrier, Elizabeth Keenan, Thomas Patterson and Edward Bocik for the respondent; M. Mitchell for the objectors.
DECISION OF OWEN V. GRAY, VICE-CHAIR, AND BOARD MEMBER W. A. CORRELL: February 7, 1989
This is an application for certification. The applicant (hereafter referred to as "CAW") is a trade union within the meaning of clause l(l)(p) of the Labour Relations Act ("the Act"). Our many days of hearing this application ended in early October 1988. They would have ended earlier, in late July 1988, but for the CAW's desire to have its counsel appear for it in another matter on dates for which this application had long been scheduled, and the other participants' willingness to accommodate the CAW.
When this matter first came on for hearing before a differently constituted panel of the Board, there was a disagreement about whether the persons employed in the "mixing room" should be included in or excluded from the bargaining unit which the applicant, respondent and objectors (collectively referred to here as "the participants") otherwise agreed was the appropriate bargaining unit for the purpose of this application. The applicant and respondent took the position that such employees should be included in the bargaining unit. The objectors took the position that they should be excluded. The participants were directed to exchange and file statements of the material facts on which they relied in support of their respective positions on this issue. When the application came back on for hearing before this panel, all of the participants were content that we resolve this issue with reference to the material filed, without hearing any further evidence. None of the participants addressed any argument to this issue at the conclusion of our hearings. Having regard to the respondent's essentially uncontested description of their terms and conditions of employment, we are satisfied that persons employed in the positions in dispute share a sufficient community of interest with other employees in the proposed bargaining unit as to warrant our acting on the agreement of the applicant and respondent that such persons should be included in that unit. Accordingly, we find that
all employees of the respondent in the City of Stratford save and except supervisors, persons above the rank of supervisor, office and sales staff, laboratory and technical staff and students employed during the school vacation period(s)
constitute a unit of employees of the respondent appropriate for collective bargaining in this application. The phrase "laboratory and technical staff' does not encompass persons working in the mixing room, who are included in this unit. We note the participants' agreement that the phrase "laboratory and technical staff" does comprise staff involved in manufacturing engineering, process engineering, industrial engineering, product engineering (including the model shop), the laboratory (apart from the mixing room) and the Industrial Products Department.
Lists filed by the respondent indicate that (applying the Board's "30-30" test to those not at work on the application date) 433 persons were employed in the bargaining unit on the application date. The applicant says that five of those persons were not so employed on that date. It is unnecessary to determine whether that is so, because no outcome of that dispute could affect the disposition of this application. The applicant filed 273 documents, each consisting of an application for membership and acknowledgement of the payment of $1.00 on account of dues. 254 were signed by persons who, according to the employer's lists, were employed in the bargaining unit on the application date. The objectors filed 226 cards ("petition cards") each bearing a signature, a witness' signature and date below a hand-printed heading in one of two forms, each of which clearly expresses opposition to certification of the applicant. 42 of these petition cards bear signatures of persons in the unit on the application date (according to the employer's lists) who, prior to the date on the petition card, had signed one of the applications for membership filed by the applicant. The applicant filed 61 typewritten statements reaffirming support for the applicant. Of the 213 persons who signed such reaffirmations, 11 are persons employed in the bargaining unit on the application date (according to the employer's lists) who had signed both an application for membership in the applicant and a petition card expressing opposition to certification of the applicant. The effect given to these various sorts of documentation has been reviewed extensively elsewhere: see Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 at paragraphs 15-17; Browning-Ferris Industries, [1982] OLRB Rep. June 816 and Baltimore Aircoil Interamerican Corp., [1982] OLRB Rep. Oct. 1387, particularly at paragraph 49. We will not duplicate that review here. Having regard to the principles reviewed in those decisions, the critical question here is whether the 31 petition cards signed by persons who had earlier applied for membership in the applicant but did not later sign reaffirmations represent voluntary expressions of the wishes of those persons. If they do, the Board would direct that the outcome of this application be determined by the result of a representation vote, even though more than fifty-five per cent of the employees in the bargaining unit on the application date were "members" of the applicant at the relevant time within the extended meaning given to that term by clause 1(1)() of the Act, for reasons elaborated in Unlimited Textures Company Limited, supra, at paragraphs 15-17.
The respondent is a manufacturer and distributor of automotive filters, spark plugs and related products. The plant with which we are concerned in this application was the subject of an unsuccessful organizing campaign 10 years or so ago. The campaign which led to this application began in about August 1987. The application itself was not filed until January 28, 1988. As the campaign progressed, employees who supported the union openly demonstrated their support in the workplace by wearing hats, T-shirts and other paraphernalia bearing CAW markings. On one occasion, indeed, one of the union's supporters went so far as to catch the attention of the company president, Ted Martin, as he was walking through the plant and, when the president came over to his work station, point to his CAW hat and say "how do you like my hat?", or words to that effect. While the worker in question has a different version of this incident, we do not accept it. It was one of a number of allegations of management misconduct and interference which proved to be exaggerations, distortions or misrepresentations of actual events of a much more neutral character.
We do not propose to review the union's allegations of management misconduct in detail. We are satisfied that the respondent's communications with its employees during the applicant's organizing campaign remained within the bounds of the free speech in which employers are entitled to engage under section 64 of the Act, and that no member of management instigated or participated in the origination or circulation of the petition cards on which the objectors rely or of the earlier petition documents on which considerable attention was focused during the course of our hearings. Those conclusions are by no means the end of an inquiry of this sort, however. Even if there is no actual management involvement in the origination or circulation of documents expressing opposition to certification of a union, such documents will be given no weight as evidence of the wishes of the employees who signed them if they were signed in circumstances which would have created in the minds of those employees an objectively reasonable belief that their employer would learn whether or not they signed.
Section 73 of the Board's Rules of Procedure requires that evidence of objection by employees to certification of a trade union be filed by the terminal date for the application in writing. It provides that no oral evidence of such objection shall be accepted by the Board except to identify and substantiate written evidence filed in a timely manner. Documents expressing opposition to representation by or certification of a trade union are generally referred to as "petitions". Those who would have the Board treat petitions as reliable evidence of the employee wishes have the onus of establishing that the documents represent "voluntary" expressions of the wishes of the employees who signed them. This onus has two components: a burden of adducing certain evidence and a general burden of persuasion. The burden of adducing evidence is defined in a negative way in subsection (5) of section 73 of the Board's Rules of Procedure, which provides:
(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witness as to,
(a) the circumstances concerning the origination of the statement of desire; and
(b) the manner in which each signature on the statement of desire was obtained.
Thus, those persons (usually referred to as the "petitioners" or "objectors") who would have the Board treat petition signatures as voluntary must produce witnesses whose collective personal knowledge extends to at least the matters identified in paragraphs (a) and (b) of subsection 73(5). This ensures that the question of "voluntariness" is not dealt with in a vacuum. The matters about which those witnesses must be capable of testifying may not be the only matters relevant to the question of voluntariness. Any party to the application may call other witnesses to deal with any such other matters or to amplify or contradict the testimony of the witnesses whom the objectors have produced in discharge of the burden to adduce evidence imposed by section 73(5) of the Rules. All of the parties' evidence is weighed by the Board to determine, on a balance of probabilities, whether the petition filed represents a voluntary expression of the wishes of those who signed it. The objectors bear the overall burden of persuasion on that issue: if the Board finds the probabilities evenly balanced, it will not treat the petition as voluntary.
The petition cards with which we are concerned were not the first written expressions of opposition to the applicant to be circulated among the employees during the applicant's organizing campaign. On November 20, 1987, during a period when the line they were working on was out of operation, Marilyn Wheal and a fellow employee wrote out several sheets with a heading which said "We the undersigned are against the union." They began getting signatures on these sheets during working hours. No application for certification had been filed at that point, so there was no Notice to Employees in Form 6 posted alerting employees to, among other things, the requirements of subsection 73(5) of the Board's Rules of Practice and consequent need for a witness or witnesses to keep track of the circumstances in which signatures are obtained. These first "petition" documents came to be passed from one person to another without regard to the need to later account for custody and identify and produce the witnesses to each of the signatures. Other employees generated additional sheets during this process.
Over the course of several days, 9 sheets found their way to Linda Barclay and Marilyn Wheal with approximately 170 signatures on them. They did not know what to do with them. Karen Mitchell, who then worked in Quality Control along with Marilyn's husband Jim, expressed a willingness to deal with the matter. The sheets were given to her, and she kept them safe in her home while she found out what she should do. For a brief period, Ms. Mitchell circulated another document expressing opposition to the applicant. Once she had met with counsel, however, she concluded that it would be best to start over with a fresh set of documents over which she could exercise sufficient control that the Board's requirements with respect to evidence in support of "petitions" could later be met. There is no evidence and there was no serious suggestion that she did this because she or any of the other objectors thought there had been any actual or perceived management involvement in these first petitions.
Having learned from counsel about the Board's requirements with respect to petitions, Karen Mitchell came up with the idea of obtaining evidence of opposition in the form of cards designed to be signed by just one employee, for filing with the Board if and when the CAW filed a certification application. These were prepared on index cards, each with a handprinted preamble expressing opposition to certification of the CAW. Karen Mitchell, Jim and Marilyn Wheal and Linda Barclay were involved in obtaining signatures on these petition cards, each of which came to bear an employee's signature, the witness' signature and a date, in December 1987, and January and early February 1988. Each of them testified and was cross-examined extensively about the immediate circumstances in which each of the petition cards was signed. We do not propose to review that evidence in detail. There is nothing in it or in the applicant's evidence of events contemporaneous with the signing of petition cards which would lead us to conclude otherwise than that those cards represent voluntary expressions of the wishes of those who signed them. There is, however, the matter of the earlier petitions and the circumstances of their origination and circulation.
A good deal of the applicant's attack on the voluntariness of the petition cards focused on the petition documents circulated in late November 1987. Ms. Mitchell still had those documents in her possession. They were produced to the Board. Having regard to subsection 111(1) of the Act, they were not produced to the other participants, but they were described to the participants in as much detail as possible short of revealing the names of those who had signed them. After obtaining from the parties an agreed list of members of management, the Board was able to verify that none of those persons appeared to have signed any of these earlier petition documents. Ms. Mitchell, Ms. Barclay and the Wheals were all questioned at length on their knowledge of the circumstances surrounding the origination and circulation of those documents. Other employees who had been involved were also called by the objectors as witnesses to give evidence about what they knew of the circumstances of origination and circulation of those documents. It is apparent from all of the evidence that these documents circulated in the work place during working hours. It was not the experience of the objectors' witnesses that any of the documents were signed in the presence of any member of management or came into the possession of any member of management at any time. Indeed, Marilyn Wheal testified that they were careful not to deal with these documents in the presence of any foremen because they knew they were "not supposed to stand around" and because there were rumours that some of the foremen "were behind the union." (Interestingly, there was no suggestion by the union's counsel, either by way of cross-examination or other evidence, that a belief in these rumours about the foremen was without any reasonable foundation.) The witnesses called by the objectors did not together have personal knowledge of the circumstances in which every signature on the earlier petition documents was obtained, however, nor could they together personally account for the whereabouts of every document at every point in time from its creation to its delivery to Ms. Mitchell.
Dale Walters, one of the union's witnesses, claimed that one of these earlier petition documents had been circulated by Shirley Court during working hours in the presence of supervisors. One day during the time frame in which the first petitions were circulated, Mr. Walters saw Ms. Court, whom he understand to be a relief operator for Line 75, moving along Line 71 with a clipboard speaking to workers on the line. She did so within sight of two supervisors, who ignored her activities. Mr. Walters did not say that he had seen anyone sign anything on Ms. Court's clipboard. He acknowledged that he had not seen what was on that clipboard. His belief that the clipboard had a petition document on it was based, he said, on the fact that Ms. Court was in a place where he believed she had no business being and, also, on conversations Mr. Walters said he had had afterwards with persons whom Ms. Court had approached. When it was suggested to him in cross-examination that Ms. Court might have been in the area either in her capacity as a member of the health and safety committee or because she was involved in arranging a Christmas function, Mr. Walters could not deny that these might have been reasons for her being in the area, but repeated that his belief that she was there to circulate the petition was based on conversations he had had with others. It was clear to counsel for the union that the Board would not accept Mr. Walters' recital of what others had told him as evidence of the truth of what he claimed to have been told. None of Mr. Walters' alleged sources was called to testify, nor was the failure to call them explained. In the circumstances, Mr. Walters' testimony is an inadequate basis for any conclusion that the first petition was circulated overtly in the presence of management.
Another union witness, Margaret Paulus, testified that she heard the signing of the petition discussed in the presence of a supervisor, Aleida McGregor. Ms. Paulus was standing on one side of a conveyor belt. Noreen Bickle and Brenda Moore were standing on the other side. Ms. McGregor came up, stood between Ms. Bickle and Ms. Moore and entered into a conversation with Ms. Moore. While that conversation was going on, Linda Leeming came up and spoke to Noreen Bickle. Ms. Paulus could not hear what Ms. Leeming said, but heard Ms. Bickle reply "he wants to sign it - go to Steve and get it from him" or words to that effect. As Ms. Paulus stood watching the individuals mentioned, Ms. McGregor looked up at her then said to Ms. Moore "I better leave, I'm being watched", or words to that effect. Ms. Paulus believed that the conversation between Leeming and Bickle was about the petition, because she believed that an employee named Steve was involved in the circulation of the first petition. Ms. Paulus was not able to say with any confidence that Ms. McGregor must have heard the exchange between Ms. Leeming and Ms. Bickle while she was carrying on her conversation with Ms. Moore. We note that when Ms. Bickle was later called by the objectors as a reply witness to deal with another issue, she was not cross-examined with respect to the incident about which Ms. Paulus testified.
Because those involved in the circulation of the petition cards had in varying degrees been involved in the creation and circulation of some of the earlier petition documents, and because those petition documents were then available to Ms. Mitchell and the others to assist them in identifying employees who might be willing to sign their petition cards, counsel for the union argued that first petition documents and the petition cards were so connected that the circumstances of circulation of the earlier documents and the gaps in the evidence with respect to their circulation should lead us to reject the later petition cards as evidence of the true wishes of the persons who signed them. There were two prongs to this argument. One was that the manner of circulation of the first petition documents created a perception of management influence or involvement which "tainted" the subsequent petition cards because of the connection between the two. The other argument was that the failure of the objectors to call witnesses who could account for the whereabouts of the first petition documents at all times during their existence was itself a sufficient basis, because of the connection, to reject the petition cards.
With respect to the latter argument, counsel for the union quoted the following passage from paragraph 11 of the Board's decision in Consumers Distributing Company Limited, [1982] OLRB Rep. Jan. 26:
... Where a second petition has its genesis in an earlier petition, the Board has in a number of previous cases commented on the need for probative evidence with respect to the circumstances surrounding both petitions, even though only the later one is filed with the Board and relied upon by the petitioners. While the first document was not what is normally referred to as a "petition" (a document directed to the Board in response to notice of an application for certification), the substance and intent of the letter to the Union is so close to that of the subsequent petition to the Board, that the Board would be remiss not to consider carefully the weight to be attached to the absence of evidence from the employee directly responsible for the preparation and circulation of the first document.
In order to put this passage in perspective, we should quote the balance of that paragraph as well as the four paragraphs which follow it:
... On the other hand, the fact remains that this was not a document filed with or even directed to the Board, and that it was nor prepared pursuant to the explanation and requirements set out in the Board's Notice to Employees. Bearing that in mind, the failure of the objecting employees to have attended the hearing with the person primarily responsible for that document is wholly understandable.
The Board has reviewed the cases relied upon by the applicant, and finds that they are roughly divisible into two groups. the first group of cases does not turn upon gaps in the evidence at all. Rather, they are cases where the evidence establishes that the first petition would have been clearly associated with management in the minds of the employee, and that the second petition was directly related to and "tainted" by the first. See Fisher Governor Co. of Canada Ltd., [1968] OLRB rep. Dec. 905; Reel-Pack Ltd., [1965] OLRB Rep. Dec. 629; Argo Cleaners, [1965] OLRB Rep. Dec. 586; Merchants Paper Co. (Windsor) Ltd., [1965] OLRB Rep. Apr. 12; Rainbow Ready-Mix Ltd., 63 CLLC ¶16,259; Lakehead Newsprint Ltd., [1961] OLRB Rep. Feb. 397; Levi Strauss of Canada, Inc., [1972] OLRB Rep. Dec. 1041 and General Crane Industries Ltd., [1974] OLRB Rep. Oct. 662.
The second group of cases does in fact deal with an absence of evidence with respect to a predecessor petition. In Weyerhaeuser Canada Ltd., [1964] OLRB Rep. Feb. 599, the petitioner conceded that her own petition had been preceded by a series of petitions which had been circulated and subsequently delivered to the office of a lawyer. The petitioner also conceded that she knew absolutely nothing concerning the history of those previous petitions, and as a result, the Board as well was left with no knowledge in respect to those previous petitions. Similarly, in Sentry Department Stores Ltd., [1968] OLRB Rep. Oct. 677 and [1968] OLRB Rep. Nov. 851, the document filed by the petitioner was identical to one which had been previously circulated and then filed with the petitioner's lawyer. The petitioner's only evidence as to the origination of her petition was that she had obtained from her lawyer a copy of the same document as was previously circulated. 5he had no idea who had instructed the lawyer with respect to the original document. Once again the Board found that it had to reject the petition before it, because, as it stated, it had no evidence as to the origination of the first document. Finally, the case of Tn-Sure Products Ltd., [1970] OLRB Rep. June 324 involved a combination of the absence of evidence with respect to a prior petition, plus sufficient circumstances before the Board to cause it to view with concern and suspicion the origination of that earlier petition.
In the present case, the Board has before it considerable (but by no means complete) evidence with respect to the circumstances surrounding the origination and circulation of the first document. Mrs. Hood was in fact one of the first employees to engage in discussions about changing their minds, and wrote to the union a letter which, from her evidence, was similar to the one circulated. In this case, the existence of these earlier letters (including the one circulated) to some extent corroborates, rather than undermines, Mrs. Hood's own explanation of the genesis of the petition which she subsequently filed with the Board. While the absence of testimony from the employee most directly involved with the origination and circulation of the letter to the union leaves open the possibility of improper management involvement of which Mrs. Hood herself was unaware, Mrs. Hood's own knowledge of and association with the circumstances giving rise to these letters makes this possibility more remote than would otherwise be the case. In the absence of any evidence of generally improper interference or lack of restraint on the part of the respondent's management personnel in this case, the Board is not prepared to speculate to that degree.
In Fuller's Restaurant, [1980] OLRB Rep. Sept. 1289, the Board was faced with a gap in the evidence with respect to delivery of the subject petition to the Board, and had this to say about the potential effect of gaps in the evidence generally, at paragraph 18:
Because the onus is on the petitioners to satisfy the Board as to the voluntariness of the statement, and because the signing of a statement against the union after signing a card in support represents a sudden change of heart, any gap in the evidence from reparation to delivery to the Board may prove fatal in any given case. It is for this reason that the Board has put petitioners on notice as to the extent of the evidence which may be required. A gap in the evidence relating to the delivery of the statement to the Board when considered in conjunction with other gaps in the evidence relating to custody of the document or in conjunction with evidence suggesting company involvement may cause the Board to find that it has not been satisfied as to the voluntariness of the statement. The Board, however, has never rejected a petition simply for the reason that it lacked first-hand evidence of the delivery of the document. The issue is one of voluntary expression and if the Board is satisfied that the origination and preparation of the statement is free of employer interference and further satisfied that each of the signatures has been obtained in circumstances which would not thwart free expression and where, as in this case, a legitimate reason exists for the absence of the person who mailed the petition, the Board would be hard pressed to find that it had not been satisfied as to the voluntariness of the statement.
As noted, the first document was not even a "petition" to the Board, and the Board draws no inference of a deliberate intent to avoid scrutiny from the failure of the circulator of that document to attend the hearing. Perhaps more important is the lack of overt interference by the respondent in general. The meetings with employees had by November become a well-established practice, and there is no evidence that the respondent took undue advantage of these meetings to overstep the bounds of permissible employer comment. While the manner chosen by the respondent to distribute the applicant's propaganda was a good deal less than perfect, it must be recalled that it was the applicant itself that initially involved store management in the distribution of its propaganda to unnamed employees through the unusual and presumably economical method of campaigning adopted in this case. The Board does not find that this factor alone creates the kind of background which would cast the present petition in doubt. For another recent case in which the restrained response of the employer became critical to the Board's ultimate conclusion that a petition was voluntary, see, Catfish Calhoun Inc., [1981] OLRB Rep. Nov. 1551.
We have no difficulty at all with the abstract proposition that the circumstances surrounding the prior circulation of a document opposing trade union representation are relevant to the Board's assessment of the "voluntariness" of a different and subsequent document filed with the Board in connection with a certification or termination proceeding. That is not to say that the "voluntariness" of signatures on the earlier document becomes a relevant question. The voluntariness of the document filed with the Board and relied upon by the objectors is still the issue. The circumstances surrounding the earlier document are relevant only to the extent they bear on the question whether the subsequent document is reliable evidence of the true wishes of those who signed it. It is unnecessary to elaborate all the sorts of situations in which that relevance might arise. To take but one generic example, the circumstances surrounding the circulation of the earlier document might have been such as to raise in the minds of employees a reasonable perception (whether true or not) that management was somehow involved in the exercise and would learn from those circulating it the identities of those who did or did not sign it. A similar perception might then arise with respect to a subsequent document filed with the Board if those who had circulated the earlier document were responsible for circulating the document put before the Board.
It is not enough, however, to shift the focus of attention to an earlier document, find that it would not have been treated as reliable evidence of the wishes of those who signed it and then, by reason of some connection between the two documents, pronounce the one before the Board to be "tainted" or "infected" with the infirmities of the earlier one. The use of these words, with their connotations of disease and decay, carries with it the danger that they will become substitutes for thought. The question is not simply whether there is a connection to an earlier document with an infirmity but, rather, whether the nature of the infirmity and the nature of the connection support a conclusion that the document filed and relied upon by the objectors is not itself reliable evidence of the wishes of those who signed it.
Even the most cursory study of the Board's jurisprudence would reveal that there are a wide variety of circumstances which may engender in employees an objectively reasonable (even if false) perception of management involvement in the origination and circulation of a statement in opposition to trade union representation, with the result that that statement is not given weight by the Board in assessing employee wishes. This can result even from behaviour of persons other than the employees who brought the document into existence and solicited the signatures on it, behavior over which those employees had no control at all. Even so, evidence with respect to such behaviour weighs in the balance in determining whether, on a balance of probabilities, a petition represents a voluntary expression of the wishes of those who signed it. It could not seriously be suggested, however, that the burden imposed on those who rely on the petition by section 73(5) of the Rules requires that they produce witnesses who, from personal knowledge, can together negative the existence of all the sorts of circumstances which might lead to a conclusion that the petition is not voluntary.
We were quoted all but the last, emphasized sentence of the following passage from the
Board's decision in Levi Strauss of Canada, Inc.,[1972] OLRB Rep. Dec. 1041 at paragraph 12:
there is no question in our minds that the evidence relating to the origination, preparation and circulation of petition #2, standing alone, would have satisfied us that the document represented a voluntary expression of the desires of the signatories thereto. However, the Board has on numerous occasions failed to recognize an otherwise valid petition and has treated the document as tainted or contaminated in circumstances where, to use the word suggested by the counsel for the applicant, the document in question has been "infected" by improper circumstances surrounding the taking of a previously existing petition. There can be no question that the onus of proof in this regard, is upon the applicant.
The applicant in that case was the trade union applicant for certification. Even with its use of the language of disease and decay, this passage recognizes that the assessment of the voluntariness of a petition may turn on matters in respect of which those who argue that the petition is not voluntary bear some initial obligation to present evidence.
Nothing in the testimony about the origination and circulation of the first petition document leads us to conclude that employees who were later asked to sign the petition cards would have had an objectively reasonable perception that management was likely to learn whether or not they signed a petition card. In other words, the objectors have satisfied the burden of persuasion on that issue. The only burden of adducing evidence which the objectors bore independent of the burden of persuasion was the obligation proposed by subsection 73(5) of the Board's Rules of Procedure and reflected in the Form 6 Notice to Employees of Application and Hearing posted in the workplace.
We do not think that obligation under subsection 73(5) is as broad as might appear from the decisions referred to in paragraph 13 of the Board's decision in Consumers Distributing, supra. The observations made by the Board in the passage which we have quoted from the Consumers Distributing decision are in many respects applicable to the circumstances of this case. Whether or not subsection 73(5) of the Rules of Procedure made it necessary for the objectors to call all the witnesses they did with respect to the origination and circulation of the first petition documents, the evidence they adduced through the witnesses they called was sufficient to comply with the basic burden of adducing evidence imposed by that subsection. The "gaps" in evidence about the origination and circulation of the first petition do not represent a failure to comply with the evidentiary burden imposed by subsection 73(5) of the Rules. Moreover, the "gaps" do not give us concern in the context of this case when weighing the probabilities on the issue of voluntariness. As in the Consumers Distributing case, the employer's behaviour in response to the union's organizing campaign was restrained. It gave no indication, by word or deed, that the exercise by its employees of their individual and collective rights under the Labour Relations Act would become the subject of punishment or reward. The fact that the union, with its many members, failed to adduce any direct evidence of the first petition's having been signed in the presence of members of management or of any other event which might have created a perception of management involvement in that petition reinforces the conclusion, in these circumstances at least, that no such event did occur.
We find that the petition cards filed represent a voluntary expression of the wishes of those who signed them.
The objectors devoted considerable evidence and argument to their allegations about the behaviour of Mr. Bill Flick, one of the union's most vocal supporters and employee organizers, toward those whom he perceived to be involved in the circulation of documents in opposition to the trade union. It is unnecessary for us to describe that behaviour in detail. Perhaps the most telling thing that might be said about it is that counsel for the union said that the union did not condone it and that he would expect us to disapprove of it. That behaviour, however condemnable, does not affect the result of any of the issues with which we are obliged to deal in this decision. It does not in any way affect our conclusion about the number of bargaining unit employees who were "members" of the applicant at the relevant time within the extended statutory definition. Nor does it affect our conclusion about whether a representation vote should be ordered. That is not to say it is irrelevant to the outcome of this application. It may have had an effect on the applicant's prospects for ultimate success. It is simply irrelevant, in the result, to those aspects of this application of which the Board is the judge.
We find that over fifty-five per cent of those employed in the bargaining unit on the application date were members of the applicant on February 17, 1988, the terminal date fixed for this application and the date which the Board determines, pursuant to clause 103(2)(j) of the Act, to be the time for ascertaining membership under subsection 7(1) of the Act. In the exercise of our discretion under subsection 7(2) of the Act, we direct that a representation vote be conducted among employees in the bargaining unit. All those employed in that unit on the date of this decision who are so employed on the date the vote is conducted will be eligible to vote. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment with the respondent.
The matter of arrangements for and conduct of the representation vote is referred to the Registrar under section 68 of the Board's Rules of Procedure.
DECISION OF BOARD MEMBER D. A. PATTERSON: February 7, 1989
I dissent from the decision of the majority. I do not believe the objecting employees discharged the burden of onus on them in proving to this member of the Board that the document filed with the Board, hereinafter referred to as the second petition, was flawed by the circulation of an initial document not filed with the Board, hereinafter referred to as the first petition.
The actions of Ms. Mitchell for the objecting employees demonstrate the first petition was less than a voluntary expression of the employees' wishes. After consultation with her counsel, Ms. Mitchell made the decision to disregard the first petition and to initiate a second statement of desire amongst employees. The evidence before the Board from the objecting employees was that the first petition commenced on November 20, 1987. It was circulated by a number of employees on approximately seven sheets of paper. Approximately 170 signatures were affixed to those sheets.
Signatures were secured by Karen Mitchell, Jim Wheal, Marilyn Wheal and Linda Barclay and others. It was the evidence of the objecting employees that the first petition was on sheets which were handed and passed around the plant. It is this lack of care and control over the circumstances surrounding the circulation of the first petition which causes the doubt this Board member has over its voluntariness.
There are two long-standing cases that have been relied on over the years by the Board
when dealing with petitions. They are Pigott Motors, 63 CLLC ¶16,264 and Morgan Adhesives of
Canada Ltd. and C. P. U., [1975] OLRB Rep. Nov. 813. Both cases are cited and highlighted in the Radio Shack, decision [1978] OLRB Rep. Nov. 1043, at paragraph 24:
- The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC ¶16,264 in the following terms:
'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 peculiarly vulnerable to influences, obvious or devious, which may operate or 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 of 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 and accurately reflects the voluntary wishes of the signatories."
Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)
Although no conclusive evidence was presented by the applicant as to the hand of management being involved, the applicant did challenge the voluntariness of the second petition. It was through the applicant's suspicion of the petition that the Board found out about the first petition and I believe that a reasonable employee would be suspicious of the second document and its voluntariness.
The Board's Rules of Procedure, in particular section 73, requires the objecting employees to bear the burden of onus establishing the petition represents a voluntary expression of the true wishes of the employees. If the objecting employees cannot attest to the care and control of such documents, there is no way of ensuring the employees that the employer was not aware of who signed the first petition. If different persons would have been responsible for the circulation of the first petition, I would have found the second petition to be voluntary. However, the same persons, or the movers of the second petition, were also involved in the origination and circulation of the first petition. Therefore, the flaws of the first petition must carry over to the second petition.
I would have dismissed the objecting employees' statement of desire and certified the union since they were in excess of 55% of the eligible employees signed.