Sandra Taylor v. United Food and Commercial Workers International Union, Local 175, 1989 CanLII 3094

Sandra Taylor v. United Food and Commercial Workers International Union, Local 175 and Local 633

[1989] OLRB Rep. August 907

1915-88-R; 1916-88-R; 1917-88-R Sandra Taylor, Applicant v. United Food and Commercial Workers International Union, Local 175, Respondent v. Thorold I.G.A Market, Intervener v. Group of Employees, Objectors; Sandra Taylor, Applicant v. United Food and Commercial Workers International Union, Local 633, Respondent v. Thorold I.G.A Market, Intervener v. Group of Employees, Objectors

BEFORE: Michael Bendel, Vice-Chair, and Board Members W. H. Wightman and P. V. Grasso.

APPEARANCES: Liam Rafferty, Frank D'Alessandro and Sandra Taylor for the applicant; Michael A. Church, C. W. Richardson and Patricia Huellon for the respondents; Kinnear Carrick and John Pachereva for the intervener.

DECISION OF MICHAEL BENDEL, VICE-CHAIR AND BOARD MEMBER W. H. WIGHTMAN; August 24, 1989

1. These are three applications under section 57 of the Labour Relations Act for declarations that the respondents no longer represent the employees of the intervener in the bargaining units for which they are bargaining agents. By agreement of the parties, the three applications were heard together.

2. There are two contested issues raised for the Board's consideration in these applications. The first is whether the evidence discloses that the employees who signed the petitions in support of the applications did so voluntarily. The second issue is whether the applicant, Sandra Taylor, who is an employee in one of these three bargaining units, could bring applications under section 57 in respect of the other two units.

3. On the question of "voluntariness", counsel for the respondents has argued that the applications do not disclose that the employees who signed petitions in support of the applications did so voluntarily. He has presented essentially three challenges to the applications:

(a) that there was a very turbulent labour relations environment at the place of work and that we should, as a result, be skeptical about the voluntariness of the petitions;

(b) that the quality of the evidence concerning the origination, preparation and circulation of the petitions was deficient, and that we could not rely on that evidence; and

(c) that Sharon Murgich, a supporter of the applications, who played an important role in the circulation of the petitions, was perceived by employees as acting on behalf of, or with the support of, management.

He has argued that, even if we conclude that any of these challenges, standing alone, is insufficient to have the applications dismissed, their cumulative effect is such that we should not accept that 45 percent of the employees in each of the three units have voluntarily signified that they no longer wish to be represented by the respondents.

4. We start our consideration of the case by reviewing the main features of the labour relations environment upon which the respondents rely. The three bargaining units at the intervener's store are composed, respectively, of full-time employees (other than those in the Meat Department), part-time employees, and full-time Meat Department employees. Local 633 represents the Meat Department bargaining unit, Local 175 the other two units. The respondents were certified for the two full-time units in 1981. From then until 1985, relations between the intervener and the respondents appear to have been good; at least there were no strikes, lock-outs, complaints to the Board or arbitrations. In late 1985, during Local 175's campaign to organize the part-time employees, an employee known to be a strong supporter of the union was laid off, only to be reinstated, with some compensation, late in 1986, following a complaint to the Board. In January 1986, Local 175 was certified as bargaining agent for the part-time unit. In the summer of 1986, negotiations for a first collective agreement for the part-time unit broke down. The employees went on strike. Some of the employees in the other two units, who were not in a legal strike position, refused to cross the picket line. They were fired. The respondent complained to the Board. The intervener also complained to the Board. An application was also made to the Board for first contract arbitration under section 40a of the Act. All of these proceedings were settled between the parties with the assistance of a Labour Relations Officer from the Board, and a first collective agreement was signed in November 1986. Thereafter, labour relations at the store appear to have remained tense. Evidence was presented on several incidents after November 1986:

(a) The union presented a grievance alleging a 40 cents per hour discrepancy in an employee's pay. It took the dispute to arbitration and was unsuccessful. The employer posted the award on a bulletin board, together with a copy of the arbitrator's statement of account. Someone wrote on the account the words "Was it worth it?". The union suspected that management had done this, but no evidence to that effect was presented.

(b) The ballot box to be used in an election for union steward in the spring of 1988 was placed in the store manager's office and the store manager handed out ballots to employees. Ms. Taylor, the applicant, was the successful candidate. The union annulled the results of the election as a result of management's role in the election. Ms. Taylor was not successful in the subsequent election. The employer denies that there was any interference in the union's election. The store manager, it says, did not approve of the ballot box being positioned in full view of the customers and simply made an error in judgement in having it taken to his office.

(c) Two employees were discharged in the summer of 1988 for alleged theft. One of them was a union steward, the other a known supporter of the union. An arbitrator has recently ordered their reinstatement, with a four-week suspension in the case of one of them. Criminal proceedings were still pending at the time of our hearing.

(d) The union gave notice to bargain for a new collective agreement in October 1988. As of mid-June 1989, the date of the conclusion of our hearing, no bargaining had yet taken place. The employer says that one meeting was cancelled by the union and that a conciliation officer had suggested that bargaining was likely to be unproductive while the present applications were pending.

The applications in this case, it should be mentioned, were filed with the Board on November 8, 1988.

5. Prior to the hearing, counsel for the union gave notice that he intended to rely on the labour relations environment at the store in his attack on the voluntariness of the support for the applications. Despite objections from the applicant and the intervener to the relevance of this evidence, we reserved a decision on its relevance and agreed to hear it. We could not exclude the possibility that it might be relevant to the question of the voluntariness of the petition. In the course of submissions on the admissibility of this evidence, the Board was referred to K Mart Canada Limited, [1983] OLRB Rep. Aug. 1338 and Belleville Plaza, [1986] OLRB Rep. Sept. 1179.

6. Having heard the evidence and submissions on the labour relations environment and the effect it might have had on the voluntariness of the application, we are now of the view that we cannot draw any inferences from it or attach any significance to it for the purposes of these applications. The approach that should be taken to evidence of this kind was considered in Belleville Plaza, supra. In that case, the Board was asked to draw inferences about the voluntariness of a termination application from events surrounding a lock-out of employees which had ended some eight months before the petition was circulated. At page 1182 of its decision, the Board explained its refusal to draw any inferences from this evidence:

14. In our view as well, little weight can be placed on the events surrounding the lock-out. In refusing to entertain evidence relating to the environment created by a labour dispute, the Board in Ottawa Journal, [1978] OLRB Rep. March 291, had this to say:

Counsel for the respondent asks the Board to draw the inference that because of the climate generated by the protracted labour dispute the statement in support of the termination application is not a voluntary one. In so doing the respondent is asking the Board to draw the inference that free expression has been thwarted because of circumstances not directly related to the origination, preparation and circulation of the statement. Even if the Board assumes that the respondent can establish the material facts upon which it intends to rely - and indeed a number of these facts are a matter of record having been set out in the Board's decisions dealing with the section 79 (now 89) complaints brought by the parties - the Board would not be prepared to draw the inference which the respondent suggests.

[emphasis added]

In a similar context, the Board in Ontario Hospital Association (Blue Cross), supra, noted that "if the employers actions overstep the bounds of lawful conduct, or are considered to be something other than they appear, the trade union has its remedies."

15. The petition before us was circulated approximately eight months after the lock-out ended. The Board finds there is nothing in the evidence which suggests that the actions of the employer had as their objective the origination of a termination application, or prevented employees from making up their own minds on union representation...

The K Mart Canada Limited decision, supra, relied upon by the respondents, while a termination application, was a case of a very different kind. As the Board noted, at page 1339 of its decision,

It is a matter of public record and is common knowledge among bargaining unit employees that, over an extended period of time, the respondent employer has engaged in a series of egregious violations of the Labour Relations Act in respect of the bargaining unit to which this application pertains.

The Board concluded that it could not ignore the impact of this employer conduct on the voluntariness of the petition. In particular, the Board was of the view that, in those circumstances, employees would likely have expected the employer to know which of them had signed, and which of them had not signed, the petition. At page 1342, the Board said the following:

10. While it is clearly not appropriate for the Board to visit the sins of an employer on its employees, who may have legitimate reasons for wishing to terminate the bargaining rights of a union which has been detrimentally affected by the employer's contraventions of the Labour Relations Act, a pattern of pervasive and notorious breaches of the Act such as that outlined above is a factor which cannot be overlooked by the Board if it is to realistically assess the voluntariness of a petition arising out of that context. To disregard that background would be to ignore the labour relations realities of the situation. However, that background is but one of several factors which have led the Board to conclude that this application should be dismissed.

7. The primary focus of the Board in a termination application has to be whether employees who signed the petition did so voluntarily. If there have been violations of the Act by the employer, the union or employees have their remedies. A history of bitterness in relations between the employer and the union is often the backdrop against which employees seek to bring to an end representation by their bargaining agent. It would scarcely be logical or desirable for the Board to hold that employees desiring to escape from a bitterly adversarial relationship should be denied the opportunity of doing so. In our view, the labour relations background is only of relevance in an exceptional case, where the Board can be satisfied that the employer has publicly engaged in a pattern of illegal behaviour designed to undermine the bargaining agent, and that, as a result, employees' freedom of expression has been thwarted. In the present case, the evidence falls far short of establishing a pattern of notorious illegal anti-union conduct by the employer. We cannot draw from this background information any inferences at all about the voluntariness of the petitions filed in support of these applications. We have therefore concluded that the evidence we heard on the labour relations background is irrelevant to the issue of the voluntariness of the petitions.

8. The next matter we wish to consider is the evidence that was presented concerning the origination, preparation and circulation of the petitions.

9. It is not necessary for us to recount all of the evidence we heard about the origination, preparation and circulation of the petitions. Counsel for the respondents alleged that there was inconsistency in the testimony of various witnesses called on behalf of the applicant and that there was a serious question about the credibility of the applicant's testimony. He also noted that the applicant and her supporters had discussed their evidence among themselves and had been interviewed as a group by their lawyer. This, he suggested, raised a doubt about the veracity of their evidence. We have concluded that there is no basis to these submissions. We have no reason to doubt that the applicant and the witnesses called on her behalf were making a sincere effort to testify truthfully to the best of their recollections.

10. Another attack by counsel for the respondents on the voluntariness of the petitions was based on the reasons put forward by Ms. Taylor and her supporters in favour of decertifying the respondents. In particular, Ms. Taylor told one of the part-time employees that, if the respondents were decertified, an employee who had recently been discharged and whose case was at arbitration would not return to work and, as a result, she (the part-time employee) would be assigned more hours. Ms. Taylor told several employees that, had it not been for the union and the cost to the employer of arbitrations, management would not have put an end to Christmas bonuses. She said that, if there were problems in the post-union era, they would be able to approach the manager or the owner of the store themselves directly. She told them that her role as steward had not been respected by the union and that she had not received mailings from the union. She complained that part-time employees had to pay the same union dues as full-time employees. She blamed the union for having caused a lot of dissension among the employees, as well as between the employer and the employees. Counsel for the respondents criticized several of these elements in the applicant's campaign as being dishonest and being designed to play on employees' fears about job security.

11. In our view, the reasons put forward by Ms. Taylor and her supporters did not go beyond the acceptable bounds of salesmanship, although some of them were contested on factual grounds by the respondents. It is not our role to sit in judgement on the truth or on the merits of what employees might say to each other during a decertification campaign. Our task is to see whether employees signed voluntarily, or whether their endorsement of the application was tainted by undue influences or other impropriety. We are unable to find anything approaching undue influence or impropriety in any of the campaigning in support of the applications.

12. We should add that the applicant filed with the Board, not only the petitions that accompanied the applications, but also petitions that were signed a month after the applications were filed. The reason for the second set of petitions was that the respondents had circulated a counter-petition (which, in view of the limited degree of overlapping, is not relevant to these applications) and this led the applicant to ask employees to re-affirm their support for the applications. This second set of petitions was filed with the Board prior to the terminal date. The original set of petitions disclosed that (subject to the issue of voluntariness) not less than 45 percent of the employees in each of the bargaining units were in favour of the applications. We heard evidence on the circulation of both sets of petitions, and we also heard some argument as to whether we should inquire into the voluntariness of the second set of petitions, as well as the first. We do not need to go into any examination of this question. We simply record our conclusion that (subject to the question of Ms. Murgich's role in the petitions) we are satisfied that both sets of petitions represent the voluntarily expressed views of those employees who signed them.

13. The final challenge to the voluntariness of the petitions, and the principal one, relates to the role of Sharon Murgich. Ms. Murgich and Ms. Taylor are good friends, a fact that is generally known among employees. According to Ms. Taylor, Ms. Murgich discussed the idea of decertifying the respondents with her before the petitions were launched. Specifically, Ms. Taylor stated that she had asked Ms. Murgich whether she thought that the applications could garner enough support among the employees. Ms. Murgich was an early supporter of the applications. She witnessed several signatures on the petitions. It is alleged by the respondents that Ms. Murgich was, at the least, perceived by employees as acting on behalf of, or with the support of, management. There was an allegation at one stage that Ms. Murgich exercised managerial functions (within the meaning of section 1(3)(b) of the Act), but this was not pursued by counsel for the respondents in his submissions to the Board. In view of the extent of her involvement with the applications, it appeared to be common ground between the parties that, if she was perceived by employees as being linked to management, as alleged by the respondents, the applications would have to be dismissed.

14. Ms. Murgich has been employed by the employer for about 13 years. Until November 1987, she had worked part-time but in that month she was appointed to a newly created full-time position. There was no job posting for the position. Mr. Pachereva, the owner of the store, approached her at work and told her that they needed some help in the office. She was asked if she wanted the job. She accepted it. (Counsel agreed that, under the applicable collective agreements, no job posting was required.)

15. A lot of evidence was presented about Ms. Murgich's new position. The position has no formal title. She has been described by management on occasions as being the "head cashier". Certain employees referred to her as such in their testimony, but stated that she was not known as "head cashier" in the store. Others said she is the "bookkeeper", although they knew that that was not her formal title. Ms. Murgich says she is a cashier who does some office work as well. She estimates that she spends about half of her time in the office and the other half at a check-out counter or on the floor of the store, performing such tasks as stocking shelves and making price changes on merchandise. However, one of the witnesses called on behalf of the respondents, namely Patricia Huellon, estimated that as much as 95% of Ms. Murgich's time was spent on office work. While in the office, Ms. Murgich works mainly on invoices received by the store and on "balancing the cash". With the invoices, she checks prices. They are paid in the employer's head office in Grimsby. As for balancing the cash, her job is to ensure that, for each of the cashiers, the cash in the till balances with the price of merchandise sold at the till and to inform cashiers of problems with their balances. She prepares a list of shortages and overages for each cash, and the list is posted. Another of her office tasks is to distribute employees' statements of wages.

16. Ms. Murgich has no authority to hire or fire employees. She has a limited role in assigning them work: specifically, she schedules their lunch breaks and tells them which cash they are to work on. She has no responsibility or authority as regards granting employees time off. She does some "banking", but the evidence did not indicate exactly what she did in this area. She knows the combination to the safe, where money and financial documents are kept. She is also aware, on a daily basis, of the total cash receipts in the store. The office in which she works is located in the front of the store. Employees are in and out of the office all day long. The door is open about half of the time, only being closed when she or one of the others in the office is working with money. Another office, located in the basement, is reserved for management. She has been in that office, but does not work there.

17. Ms. Murgich has been treated by the employer as being in the bargaining unit of full-time employees. Union dues are deducted from her pay, benefits are in accordance with the collective agreement, and her name appears on the seniority list. Her rate of pay, however, is higher than that of other cashiers and is not provided for in the collective agreement. The employer says that when it established her new position and a new rate of pay, it anticipated that her rate would be the subject of bargaining at the next round. Unlike the managers at the store, she receives no performance bonus.

18. Extensive evidence was presented on Ms. Murgich's role in employee discipline. Since she assumed her new duties, she has had some involvement, according to the evidence, in the discipline or possible discipline of three employees.

19. The first of these employees was a Ms. Bridget Pen, a cashier accused of theft. The allegations related to some cans of shrimp, some cans of pop and some coupons improperly accepted. Ms. Murgich had some involvement in the investigation of these allegations: specifically, she was requested by the store manager to check the "detail roll" from the cashier's machine, which showed all of the sales that had been registered. At the time, Ms. Pen had not been advised that she was under suspicion. Ms. Murgich participated in some discussion on what the employer should do about its suspicions. Management decided to question Ms. Perri, who was then suspended. Following that suspension, it appears, Ernie Amo, the store manager, asked Ms. Murgich to rewrite for him some notes he had made about the case since his own handwriting was difficult to read. Ms. Murgich complied. In late August 1988, a week or so after being suspended, Ms. Pen was summoned by the employer to a meeting in the basement office. Also present at the meeting were Ms. Huellon, the union steward, Mr. Amo and Ms. Murgich. Ms. Murgich took notes at the meeting. At the conclusion of the meeting, Ms. Perri was informed by Mr. Amo that she was fired. Although she testified that she took notes at the meeting, Ms. Murgich stated that the only reason she was asked to be present was that Ms. Perri had previously made an allegation of sexual harassment against Mr. Amo, and that Mr. Amo therefore wanted to have at the meeting a female witness of his choosing. Ms. Huellon's presence as a union representative was not sufficient for Mr. Amo's purposes. (Ms. Perri, it might be noted, is one of the employees whose reinstatement was recently ordered by an arbitrator.)

20. Ms. Murgich's second experience with employee discipline was in the case of a full-time cashier named Vi Partington. Ms. Murgich had observed her accepting coupons for meat items, which was against company policy. She reported it to management. The next morning, September 30, 1988, a meeting was called on the incident by Mr. Amo. At Mr. Amo's request, Ms. Murgich told Patricia Huellon, the union steward, of the meeting and asked Ms. Huellon to bring Ms. Partington to the meeting. Mr. Amo also asked Ms. Murgich to come to the meeting. The meeting was held in the basement office reserved for management. There was a discussion on company policy concerning the acceptance of coupons, in which Ms. Murgich participated. Mr. Amo, however, rather than Ms. Murgich, told Ms. Partington what she had been observed doing at her cash. Ms. Partington knew that it had been Ms. Murgich who had seen her accepting the coupons. Mr. Amo issued a verbal warning to Ms. Partington at the meeting.

21. In addition to the disciplining of Ms. Perri and Ms. Partington, there was evidence that Ms. Murgich had been involved in the investigation of a suspected cash shortage by Ms. Huellon, one of the full-time cashiers. Ms. Huellon was believed to have been short by some 1,268 dollars, a much larger amount than most shortages or overages. She was asked to come to a meeting in the store office. In attendance were Ms. Murgich, Mr. Amo and Nancy Nenadovich. Ms. Nenadovich is the daughter of Mr. Pachereva, the owner, and works in the office. There was a short discussion about the suspected shortage in which everyone, including Ms. Murgich, participated. Ms. Huellon testified that she perceived Ms. Murgich to be participating at the meeting as a head cashier. Ms. Huellon was asked if she could account for the shortage, but she was unable to do so. No discipline was imposed. A couple of days later, it was established that the suspected cash shortage was the result of a computer error.

22. The evidence did not establish whether Ms. Murgich's involvement in the cases of Ms. Perri, Ms. Partington and Ms. Huellon was generally known among employees. Ms. Huellon testified that, as union steward, she did not usually discuss with employees discipline affecting fellow employees, although she did discuss the case of Ms. Partington with Ms. Taylor, since she believed that Ms. Taylor had been accepting coupons in the same circumstances that led to Ms. Partington being disciplined. She also testified, however, that it is a fairly small store, with a total of some 40 employees, and that most employees likely learned of management-employee meetings informally by word of mouth.

23 Apart from Ms. Murgich's role in interviewing and disciplining employees, the evidence indicated that Ms. Murgich has a social relationship with Mr. Pachereva, the owner of the store, and his family. Ms. Murgich, according to the evidence, is a close friend of Ms. Nenadovich, the daughter of Mr. Pachereva. Ms. Murgich and Ms. Nenadovich work together in the office. They lunch together fairly often. Ms. Murgich was bridesmaid at Ms. Nenadovich's wedding. Ms. Murgich has been a guest at Mr. Pachereva's home a couple of times. She regards herself as a friend of the Pachereva family and attends family social functions.

24. Ms. Huellon, the union steward, testified that she has regarded Ms. Murgich as being part of management ever since her appointment to the new full-time position. In cross-examination, however, she acknowledged that she had taken no steps to have Ms. Murgich removed from the seniority list and from the dues deduction list, and that she had not objected to her presence at the few union meetings that she (Ms. Murgich) had attended. Mr. Bill Richardson, the respondents' business agent, explained that he did not become aware of Ms. Murgich's duties until late in 1988 and that it would have appeared to be self-serving for the union to seek to have her excluded from the bargaining unit while the termination applications were pending before the Board.

25. We start our examination of the role of Ms. Murgich with the proposition that, in termination applications, the Board is required to satisfy itself that employees who signed petitions in support of the application did so voluntarily. If management has been involved, directly or indirectly, with the application, the Board will find that the application has not been made voluntarily by the employees. The same conclusion will be reached if the Board concludes that employees would likely have perceived that management was involved through the medium of an employee who has supervisory or other "near management" responsibilities. In Joseph Foley, [1980] OLRB Rep. Oct. 1347, the Board was faced with a petition that had been actively supported by a working foreman. It articulated the issue it had to resolve in these terms:

10. In assessing the voluntariness of the statement of desire, we are unable to accept the proposition that Mr. Foley stands in the same position as any other employee in the bargaining unit. Because of his supervisory functions, Mr. Foley's active involvement with the statement of desire raises concerns which would not exist if he were other than a working foreman. However, we also do not believe that his involvement with the statement of desire must invariably result in a finding that it cannot be given any weight. Rather, what is required is an examination of all of the surrounding circumstances and an assessment of whether other employees would likely have viewed Mr. Foley as acting on behalf of, or with the support of management, or whether they would likely have perceived him as a bargaining unit employee seeking only to further his own self-interests.

26. We do not attach any particular significance to the evidence of Ms. Murgich's role in the discipline or possible discipline of employees. Her presence at two of the "disciplinary" meetings about which evidence was presented, namely those relating to Ms. Partington and Ms. Huellon, flowed naturally from her responsibilities as the person who was the link between the cashiers and the office. She was the person with responsibility for checking on shortages and overages and a person who was familiar with the store's policy on accepting coupons. While discipline was imposed on Ms. Partington at the meeting relating to her, the meetings appear to have been more in the nature of investigative and counselling meetings, where the employer wanted to try to understand what had happened and correct problems, if any. As for Ms. Murgich's attendance at the meeting concerning Ms. Pen, we have no reason to doubt the explanation given in the evidence on her presence, namely that it was to serve as a witness for Mr. Amo in the event that further allegations of sexual harassment were to be made. Not only was there an absence of evidence to the effect that Ms. Murgich had actually played any part in the decision to discipline these employees, but there was also an absence of any suggestion in anyone's evidence that employees believed that she had played such a part.

27. Apart from her role in these disciplinary meetings, the respondents have argued that her role in the store as a whole would have led employees to regard her as being closely allied to management and to be acting in management's interest. In Lo Food Division of Lumsden Brothers Limited, [1983] OLRB Rep. May 676, a case relied upon by counsel for the respondents, the Board considered whether a petition presented in opposition to an application for certification in respect of some supermarket employees should be rejected on the ground that it had been originated and circulated by the employer's "head cashier", Ms. Miner. This is what the Board said:

18. Ms. Miner's position in the store and responsibilities are somewhat different from that of other employees. They are paid on an hourly basis, while she is paid a salary. She makes up the cashier's weekly schedule, and if they have any customer problems, they are referred to her. Ordinarily, she does not work at the cash registers. Seventy-five per cent of her time is spent in a small office area on the main floor of the store from which she can oversee the cashiers' activities. She delivers cash to and from their work stations, takes care of deposits, Brinks' deliveries, and invoices, and keeps track of the cashiers' time for payroll purposes. If an employee wishes to have time off, she/he advises Ms. Miner, who juggles the schedule accordingly. Ms. Miner testified that she has never had any difficulty accommodating these employee requests, and has been able to do so without reference to higher authority.

19. Ms. Miner also has a role in the imposition of employee discipline. That discipline is meted out in accordance with an established employee policy which, in Ms. Miner's case, relates to cash shortages for which the cashiers are held responsible. Discipline is imposed on a progressive basis, beginning with a warning for the first infraction, a one-day suspension for the second, a three-day suspension for the third, and ultimately a discharge. Employees are allowed a certain number of discrepancies within a defined time period. It is Ms. Miner who scrutinizes the situation in the first instance and determines whether a disciplinary notice is warranted. The action which she initiates is then brought to the store manager's attention and, in the ordinary course, is endorsed by him. In cross-examination (by both the employer and the union), Ms. Miner characterized her role as initiating the disciplinary action. According to Ms. Miner, the store manager has never failed to endorse such "recommendation".

20. The evidence indicates that Ms. Miner may also have a peripheral or participatory role in the hiring and termination of employees. Jeff Lemieux testified that he had contact with Ms. Miner at the time he was hired, turned in his job application to her, and assumed that it was Ms. Miner who checked his references prior to his actual hiring. There is no indication that the plant manager had any role in this process. Similarly, Ms. Miner told the Board about a situation in which one of the cashiers had an unsatisfactory attendance record and was told by Ms. Miner that she would have to "straighten up her act". Ms. Miner and the store manager had previously discussed the situation and how it should be dealt with, and both were present when the employee indicated that she intended to give notice of her termination. Somewhat later, the employee had a change of heart and approached Ms. Miner seeking reinstatement. Ms. Miner, however, was unwilling to accept that revocation and on consultation with the store manager, it was decided that the respondent should not do so.

The Board concluded that the petition should be rejected as a result of Ms. Miner's role in its origination and circulation. It is obvious that Ms. Murgich's duties have much less of a managerial flavour to them than did those of Ms. Miner in Lo Food. Ms. Murgich is paid an hourly rate, not a salary. She does not make up cashiers' weekly schedules. She has no role in approving employees' requests for time off. She has no substantive role in imposing discipline. She has no role in hiring.

28. In addition to Ms. Murgich's duties being different, it must also be remembered that, in termination applications, the Board is more inclined to accept petitions at face value than in certification applications (which is what the Board had before it in Lo Food). As the Board explained in N. J. Spivak Limited, [1977] OLRB Rep. July 462:

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

29. In our view, therefore, the decision in Lo Food does not support the respondents' case that Ms. Murgich's involvement in the petitions tainted them. In any event, every case must be approached on its own particular set of facts, and the Board must ask itself whether employees would likely have thought that management was supporting a termination application, or tracking the support it was enjoying among employees, through the employee in question. That determination has to be made on the basis of the evidence presented and inferences that can properly be drawn from that evidence, rather than from a comparison with the facts of other decided cases.

30. As for Ms. Murgich's social relationship with the store owner and his family, we would note that the Board has held in previous cases that such personal relationships might well have a bearing on employees' perceptions of covert management involvement. In Labatt's Ontario Breweries, [1985] OLRB Rep. Mar. 433, the Board had this to say on the question of the relevance of personal relationships:

13. A petitioner's personal relationship with a member of management is a factor to be considered in assessing what would have been in the minds of those who signed the petition. The existence of such a relationship, however, does not lead inexorably to the conclusion that the petition does not reflect the voluntary expression of the wishes of those who signed. International Beverage Dispensers and Bartenders Union, Local 280, [1981] OLRB Rep. June 690 involved an application for termination brought by an employee who was the wife of one of the co-owners of the tavern at which she and the other affected employees were employed. The Board found that the petition was voluntary. In Ottawa Commercial Realities Limited, [1983] OLRB Rep. Nov. 1877, the Board found that a petition in support of a termination application was voluntary, even though the applicant was the sister of the immediate supervisor of the employees affected. A petition circulated by the son of the owner of the employer company was rejected in Jean Marc Joanisse, [1983] OLRB Rep. Jan. 92, when the Board concluded that the son would be regarded by employees as an arm or agent of his father and, hence, a member of management. It was not without significance in that case that the owner's son, applicant on the application, had served as manager of the store when his father was absent and, it was found, had made references to his father's ownership and management of the business in the course of circulating the petition.

31. Upon a consideration of all of these factors, we have concluded that employees would likely not have seen Ms. Murgich as acting on behalf of management in relation to these applications.

32. We are not persuaded that her role as "head cashier" (if that is what it was) would have led employees to perceive her as being allied with management. She was responsible for few, if any, of the functions usually regarded as indicia of management (e.g., hiring, firing, granting time off, scheduling). Her role in disciplining employees was not proved, and there was no evidence that what involvement she did have in this regard was known to employees. We also note that she was known to be treated, by the employer and the union alike, as a member of the bargaining unit. Employees were entitled to assume, and likely did assume, that, if the union had suspected that Ms. Murgich was allied with management, it would not have tolerated her presence at union meetings, and would have taken steps to have her excluded from the bargaining unit. This is particularly true, in our view, if labour relations were as polarized and as turbulent as the respondents have alleged.

33. Ms. Murgich's social relationship with the owner of the store and his family has given us some cause for concern. However, in the circumstances of the case, we have no reason to conclude that this relationship would have been regarded as unusual by employees. We note that two other employees testified about social relationships with the owner and his family: one said that he played sports with one of the owner's sons, the other that his parents were neighbours of the owner and that he knew the family. In this type of environment, we are not persuaded that Ms. Murgich's social relationship with the owner and his family would likely have been viewed by employees as suggesting that she was pursuing the owner's interests in supporting the applications.

34. We have therefore concluded that we should accept the petitions supporting these applications as having been signed voluntarily.

35. We now turn to the question of Ms. Taylor's competence to bring termination applications in respect of the two bargaining units of which she was not a member.

36. As noted earlier, the three bargaining units at the intervener's store are composed, respectively, of full-time employees (other than those in the Meat Department), part-time employees, and full-time Meat Department employees. Local 633 represents the Meat Department bargaining unit, Local 175 the other two units. Ms. Taylor is in the part-time unit. Counsel for the respondents took the position that an employee can only make an application under section 57 of the Act if he is in the bargaining unit in question or, exceptionally, if he is expressly authorized to make the application by employees in another unit. Counsel referred the Board to the decision in Huntsville I.G.A., [1988] OLRB Rep. Jan. 1517. He noted that the petitions in the present case, unlike those in Huntsville I. G.A., contained on their face no authorization for Ms. Taylor to make these applications, and that no evidence had been presented to demonstrate that the employees from the unit of full-time employees and the unit of Meat Department employees had, even informally, authorized Ms. Taylor to make these applications on their behalf.

37. We have considered the decision in Huntsville I. G.A., as well as the case-law referred to therein. Although in Huntsville I. G.A. the petitions did expressly authorize the applicant to make the applications, a fact noted by the Board in its decision, we do not read the cases as supporting the proposition that, absent an express authorization in the petitions, an application can only be made by an employee in respect of his own bargaining unit. In paragraphs 10 and 11 of the Huntsville L G.A. case, the Board expressed the following views on the approach that should be taken to this issue:

10. In our opinion we should not take an unduly "technical" view of applications such as these, and we are supported in that approach by cases such as Gardiner's Supermarket Limited, [1985] OLRB Rep. Dec. 1737; St. Michael Shops of Canada Limited, [1979] OLRB Rep. Oct 1023; Thomas Construction (Galt) Limited, [1982] OLRB Rep Nov. 1727 and Cara Operations Limited (Retail Stores Division), [1984] OLRB Rep. Oct. 1378. Indeed, the situation in Cara Operations Limited is very similar to the present one because, there, the nominal applicants were members of a full-time bargaining unit, but the termination application and the related anti-union petition encompassed employees in the part-time bargaining unit as well. The Board found that the nominal applicants were making application both on their own behalf, and on behalf of the employees in the other bargaining unit. That approach was approved and followed by the Board in Economy Fair, [1985] OLRB Rep. Sept. 1357.

11. We are inclined to take the same view. In the instant case it is evident from the documentary and other evidence before us that the majority of the employees in each bargaining unit wish to terminate the respondent(s) bargaining rights, and have designated Mr. DeHaan to take such steps as are necessary to accomplish that objective. Indeed, had Mr. DeHaan framed his application as being on his own behalf and on behalf of the signatories to the supporting petition there would be no issue. But when the application and the petition document are read together, that is obviously the employees' intention, and we find nothing fatal in the omission of those words from the application's style of cause. While the nominal applicant (Mr. DeHaan) is a member of the meat department bargaining unit, we find that this application is, in fact, being made by a majority of employees of each of the three bargaining units, and that the documentary and other evidence before us warrants the taking of a representation vote to test the union's continued support.

38. We are satisfied, from the evidence as a whole, that, upon signing the petitions, the employees understood full well that, as a result of their petitions, one or more applications would be made to the Board for the termination of the respondents' bargaining rights. We are also satisfied that they either knew that Ms. Taylor would be the nominal applicant or were indifferent as to who the nominal applicant would be. On the basis of Huntsville I. G.A. and the cases discussed therein, we conclude that Ms. Taylor was competent to bring all three applications.

39. In the result, we are satisfied that not less than 45 percent of the employees of Thorold I.G.A. Market in each of the three bargaining units represented by the respondents at the time the applications were made had voluntarily signified in writing that they no longer wish to be represented by the respondent trade unions as of December 15, 1988, the terminal date fixed for these applications 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 the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent trade unions under section 57(3) of the said Act.

40. We direct that a representation vote be taken among the employees in each of the bargaining units represented by the respondents, as described in their most recent agreements with the intervener, namely:

(1) All employees of Thorold I.G.A. Market, in Thorold, regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except department managers, persons above the rank of department managers.

(2) All employees of the Company at Thorold Ontario, save and except Meat Department employees, Department Managers, persons above the rank of Department Manager, persons regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period.

(3) All meat department employees of the Company at Thorold, Ontario, save and except meat department manager, deli manager, persons above the rank of Department Manager, persons regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period.

41. The Meat Department employees will be asked to indicate whether they wish to continue to be represented by Local 633 of the United Food and Commercial Workers International Union in their employment relationship with the employer. The employees in the other two bargaining units will be asked to indicate whether they wish to continue to be represented by Local 175 of the United Food and Commercial Workers International Union in their employment relationship with the employer.

42. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER PAT V. GRASSO; August 24, 1989

1. I cannot agree with the decision of the majority of the Panel in this matter.

2. The Union presented 3 major challenges to the application:

a) that there was a very turbulent labour relations environment at the place of work and that we should, as a result, be skeptical about the voluntariness of the petitions;

b) that the quality of the evidence concerning the origination, preparation and circulation of the petitions was deficient, and that we could not rely on that evidence; and

c) that Sharon Murgich, a supporter of the applications, who played an important role in the circulation of the petitions, was perceived by employees as acting on behalf of, or with the support of, management.

3. My decision is based on the role of Sharon Murgich in support of this application.

4. Ms Murgich has been employed by the company for some 13 years as a part-time employee. In November 1987, Mr. Pachereva the owner of the store told her that they needed help in the office and was asked if she wanted the job. She accepted it.

5. Ms Murgich testified that she spends about 50% of her time in the office and 50% of her time as a cashier or on the floor stocking shelves and changing prices on merchandise. Ms Huellon a witness for the Union estimated that Ms Murgich spends about 95% of her time in the office. Mr. Wayne Hilderbrindt a witness for the applicant testified that he often takes receipt sheets to the office. Ms Murgich is usually there but he does not know what she does with the receipts.

6. The new position held by Ms Murgich has been at times described by both, employer and employees, as a "head cashier", while other employees have described her as a "bookkeeper". It appears from the evidence that while working in the office, Ms Murgich works on invoices, checks prices and balances cash, she also does some banking. She knows the combination to the safe, where money and financial statements are kept. She is also aware, on a daily basis, of the total cash receipt in the store. She has a role in assigning work to other cashiers, schedules their lunch breaks and tells them which cash register they are to work on. All of this work was performed by the Store Manager before it was assigned to Ms Murgich.

7. The office in which Ms Murgich works is located at he front of the Store. The Store Manager Mr. Ernie Amo also works in that office, as does Nancy Nenadovich. Mr. Pachereva the owner of the store is the father of Ms Nenadovich.

8. According to the evidence Ms Murgich has a friendly and social relationship with Mr. Pachereva, the owner of the store. She is also a close friend of Ms Nenadovich. Ms Murgich was a bridesmaid at Ms Nenadovich's wedding, has been a guest at Mr. Pachereva's home and she regards herself as a friend of the Pachereva family and attends family social functions.

9. Since Ms Murgich assumed her new duties she has been involved in the discipline of three employees.

10. One of the employees, Bridget Perri, a cashier was accused of theft. The allegations involved some shrimps, some cans of pop and some coupons improperly accepted. Ms Murgich was involved in the investigation of these allegations. She was requested by the Store Manager to check the "detail roll" from the cashier's cash register. While the investigation was going on, Perri had no idea that she was under suspicion. Ms Murgich participated with management on what action should be taken about its suspicions.

It was decided to question Ms Perri, who was subsequently suspended. After the suspension, Ernie Amo the Store Manager asked Ms Murgich to rewrite the notes he had made about the case since his own handwriting was difficult to read. Mr. Amo's notes were not submitted as evidence.

11. About a week after being suspended, Ms Perri was called by the employer to attend a meeting. The meeting was held in the basement office. Present at the meeting were Ms Peril, Ms Huellon the Union Stewart, Mr. Amo the Store Manager, and Ms Murgich. At the meeting Ms Murgich sat on the side of management and took notes for Mr. Amo. At the conclusion of the meeting, Ms Perri was fired. Ms Murgich testified that the only reason she was asked to be present at the meeting was that Ms Perri had previously accused Mr. Amo of sexual harrassment and that Mr. Amo therefore wanted to have a female witness, notwithstanding that Ms Huellon was present at the meeting. The company did not call any evidence on the matter. It should be noted at this time that Ms Perri was recently reinstated by an arbitrator.

12. The next incident occurred in the case of a full-time cashier named Vi Partington. Ms Murgich had seen her accepting coupons for meat items, which was against company policy. Ms Murgich reported the matter to management. On September 30, 1988, a meeting was called by the Store Manager. At the request of the Manager Mr. Amo, Ms Murgich told Ms Huellon of the meeting and to bring Ms Partington to the basement office. At the request of Mr. Amo, Ms Murgich also attended the meeting. Ms Murgich participated in the discussion on behalf of management, about company policy concerning the acceptance of coupons. At the end of the meeting Ms Partington received a verbal warning. Again the company offered no evidence.

13. In addition to the above, Ms Murgich had been involved in the investigation of a suspected cash shortage by Ms Huellon, a full-time cashier and a Union Stewart. It was believed that the shortage was about $1,268. Ms Huellon was asked to attend a meeting at the office where Ms Murgich works. In attendance were Ms Murgich, Mr. Amo the Store Manager, and Ms Nenadovich the daughter of the owner. Everyone was involved in the discussion of the shortage, including Ms Murgich. Ms Huellon was asked if she could account for the shortage. She was unable to do so. Some time later, it was concluded that the shortage was the result of a computer error. Ms Huellon testified that she regards Ms Murgich as being part of Management and that Ms Murgich gives direction to all cashiers.

14. Sandra Taylor, the applicant and chief witness, testified that it was her idea to start a petiion against the Union The first person she talked to about the petiion was Sharon Murgich. Ms Taylor could not recall whether she spoke to Ms Murgich before or after she sought legal help.

15. There is evidence that Ms Murgich played a major role in the petition. She signed it, circulated it, witnessed some of the signatures and talked to other employees about signing the petition.

16. Mr. Wayne Hildebrindt testified that Ms Murgich was always present at the meetings that he attended, including meetings with the Lawyer.

17. I don't feel that we should accept a petition even if it may be free of actual company interference if it was circulated in circumstances that the employees who signed it would reasonably believe that the circulator was part of management or had greater proximity to managerial authority than other employees or where the employees would reasonably be concerned that the petition had the support of management or that management would become aware of whether the employee decided to sign the petition or not.

18. 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:

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 of opposition to a trade union signed in circumstances where the employees could reasonable 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:

30. The findings 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.

31. 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.

19. As I have noted, Ms Murgich's involvement at the beginning of the petition was such that employees would perceive management as having a vested interest in the petition, or at least, employees would reasonably have believed that their involvement in the petition would have been brought to the attention of management.

20. I am satisfied that in these circumstances employees could reasonably perceive Ms Murgich to be an arm of management. Her knowledge of daily operations of the company, her relationship to the owner and his family, her close working proximity to management, her involvement in attending disciplinary meetings, taking part in the discussion as a member of management, taking notes for and on behalf of management and the fact that this is a small supermarket, virtually all employees would be aware of Ms Murgich activities and she could reasonably be regarded as an agent of management and not merely a fellow employee expressing an honestly held independent belief.

21. For all of the above reasons, I find the petition not to be voluntary and I therefore dismiss the application.