Ontario Labour Relations Board
[1988] OLRB Rep. March 319
2976-87-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. P. J. Walibank Manufacturing Co. Limited, Respondent v. Group of Employees, Objectors
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. A. Correll and D. A. Patterson.
APPEARANCES: T. Heller, Clare Meneghini and Olive Ryan for the applicant; A. A. Morscher, A. J. Wallbank and N. Hofstetter for the respondent; Glenn Jones and Tom Epplett for the objectors.
DECISION OF THE BOARD; March 28, 1988
1The name of the respondent is hereby amended to read: "P J. Wallbank Manufacturing Co. Limited".
2This is an application for certification.
3There is no dispute, and the Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and, further, that this application is timely.
4Having regard to the representations of the parties, the Board further finds the following to be the unit of employees appropriate for collective bargaining:
All employees of the respondent in Blandford-Blenheim Township, save and except foremen, persons above the rank of foreman, professional engineers, engineering technicians, training co-ordinators, designers and draftsmen, office, clerical and sales staff, home workers, canteen staff, persons regularly employed for not more than twenty-four hours per week, students employed during the school vacation period and students employed in co-operative education programs.
For the purpose of clarity the Board notes the parties' agreement that Robert Kocher and Andy Stubbe are excluded from the above-described bargaining unit, while Olive Ryan, the "stores keeper" is included.
5In support of this application for certification the union filed documentary evidence of membership on behalf of more than fifty-five per cent of the employees in the bargaining unit. That documentary evidence consists of combined applications for membership and attached receipts. The receipts record the payment of $1.00 to the applicant in respect of membership fees. Each card is signed by the subject employee and the receipts are countersigned by a witness to verify payment. The documentary evidence is correct in all respects, meets the form and timeliness requirements prescribed under sections 1(1)(l) and 103(2)(j) of the Act, and is supported by a properly filed Form 9 Declaration attesting to its regularity and sufficiency. There is no allegation of misconduct or misrepresentation in the manner in which these cards were solicited. Certainly there is nothing to call into question the "voluntariness" of the individual acts of signing. There was also before the Board certain other written statements of employee views (for and against the union) which were filed prior to the terminal date. Those statements, when read together, do not raise any real question about the employees' wishes with respect to union representation.
6Having regard to the totality of the evidence before it, the Board finds that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on February 22, 1988, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
7Counsel for the respondent and the objecting employees do not dispute that the union has established sufficient membership support to warrant certification without recourse to a representation vote. They point out, however, that under section 7(2) of the Act the Board retains discretion to direct that a representation vote be taken, even where it is satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of the union. They urge the Board to exercise that discretion and order a vote. In support of this proposed disposition of the case, counsel for the respondent and the objectors make the following submissions:
The "arithmetic" is not overwhelmingly in favour of certification. About 57% of the bargaining unit members support the union but there is a significant minority which does not.
After the application date but before the terminal date, three individuals believed by the respondent and the objectors to be trade union members voluntarily terminated their employment. If they signed union cards, and if such were cards were disregarded, (even though those individuals were clearly employees in the bargaining unit on the application date) the objectors and respondent speculate that the union's "clear majority" of more than fifty-five per cent would be diminished below the statutory threshold.
The then parent and predecessor of the present applicant union was certified in 1980 after a protracted certification proceeding before the Labour Relations Board. Thereafter there were equally protracted negotiations resulting in a settlement unacceptable to the union, and a termination or abandonment of bargaining rights a couple of years later. The employer does not welcome a possible repetition of that scenario and therefore urges the Board to direct the taking of a representation vote in order to seek positive confirmation that a majority of its employees really do wish to be represented by a trade union.
Finally, the employer speculates that some of its employees may have signed union membership cards or other documents indicating support simply to please their fellow employees rather than any real commitment to the union. A representation vote would provide employees having second thoughts with a mechanism for expressing them.
We shall deal with each of these submissions in turn.
8Under the Labour Relations Act, a trade union is certified when it is able to demonstrate that a majority of the employees want it to be their bargaining agent. That determination is often made after examining its documentary evidence of membership. That is the system prescribed by the Act (see also Rule 73). In this jurisdiction representation votes remain a residual mechanism resorted to only when the union is unable to establish a "clear majority" (i.e. more than fifty-five per cent), there is some reason to doubt the reliability of the membership evidence as an indicator of employee wishes, or there is some policy reason or special circumstance warranting the additional evidence of a representation vote. The statute is quite clear that where the union has established the requisite "clear majority", votes are to be the exception, not the rule.
9As we have already noted, the union's right to "automatic certification" does not depend upon establishing a simple majority as it does in the federal jurisdiction. The union must demonstrate support among more than fifty-five per cent of the employees in the bargaining unit. The Legislature has taken into account the possibility of close cases, by prescribing a higher threshold of support for automatic certification. Against that background it would be totally inappropriate for the Board, through the exercise of discretion, to impose some higher arithmetic standard simply because the arithmetic was "close" and the union had demonstrated only a little more than the clear majority specified in section 7 of the Act. It would also inject a degree of uncertainty -and hence litigation and delay - if the Board were to readily depart from what have heretofore been clearly established "rules".
10Certification depends upon counting the number of employees and measuring the degree of union support at particular points in time. The statute provides that the number of employees in the bargaining unit will be determined on the application date and the degree of union support will be measured on the "terminal date" which is usually a couple of weeks later. It would be easier, of course, if both the number of employees and the level of membership support were determined on the application date. That is the federal model. The result, though, would inhibit the ability of members to register with the Board a change of heart after the application has been filed.
11No doubt the present system does not always achieve perfect decimal point democracy. But no system could ever do so. The level of employment will inevitably be somewhat fluid, as will the wishes of employees. We do not think that the departure of three employees after the application date, whether or not they were union supporters, should prompt us to exercise our discretion to order a representation vote any more than the solicitation of more membership cards after the terminal date would prompt us to extend it so that the pro-union wishes of these employees could be counted. To really follow through with counsel's submission would require the Board, in each case, to obtain a second list of employees as at the terminal date, and do a second set of calculations. Moreover, to exercise our discretion in the manner suggested by counsel would require us to reveal the fact that the employees were in fact union supporters, or that they were not. The conclusion urged upon us would only follow if the three individuals in question had signed membership cards. Yet the scheme of the Act is designed, insofar as possible, to protect the confidentiality of that employee choice (see section 111 of the Act) - An employee who signs a membership card (or an anti-union petition for that matter) is entitled to the protection of the statute even if s/he subsequently leaves the job. We decline to exercise our discretion in the manner, or for the reasons, urged upon us by the employer and objectors.
12We do not think that the fact that collective bargaining was unsuccessful some years ago is any reason, today, to exercise our discretion to direct a representation vote. We are well aware that collective bargaining alters the way in which an employer deals with its employees and may involve negotiating or contract administration costs which it would prefer to avoid. If collective bargaining ultimately founders, an employer may consider those costs unnecessary or ''thrown away". However, we do not think that any useful purpose would be served by conducting a post mortem of the collective bargaining experience some years ago in order to address the employees' position today, or to speculate about the likelihood of success this time. We do observe, parenthetically, that the first round of bargaining had a rather inauspicious beginning since the certification proceeding took a year to complete, and was punctuated by the unfair labour practice discharge of the union's key employee supporter. It is hardly surprising that, in the circumstances, and over time, the employees' appetite for collective bargaining would diminish.
13Finally, we find no merit in the employer's submission that some of its employees might have signed membership cards because they were urged to do so by friends or fellow workers. People join organizations (churches, clubs, political parties, etc.,) for all kinds of reasons, including "peer pressure", or a desire to "go along" with one's friends. However, the precise motive for signing a membership card is irrelevant, so long as the card was not obtained by threats, promises, undue influence, or material misrepresentation. Should the employees change their minds with respect to the value of trade union representation, they will have an opportunity to terminate bargaining rights ("decertification") in the manner prescribed by the Act.
14In summary then, the union has demonstrated sufficient support to warrant certification without recourse to a representation vote, and, in our view, there is nothing in the circumstances of this case which would warrant the exercise of our discretion to direct that a vote be taken.
15A certificate will therefore issue to the applicant in respect of the above-described bargaining unit.