[1989] OLRB Rep. April 324

3097-88-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Brian Chevrolet Oldsmobile Ltd., Respondent v. Group of Employees, Objectors

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members M. Rozenberg and D. A. Pat­terson.

APPEARANCES: C. Meneghini, H. Powers and Kevin Shelton for the applicant; Grant E. Black, David D'Amico, Marlene Barker and Peter Kotssilidis for the respondent; Roberta L. Mater for the objectors.

DECISION OF THE BOARD; April 24, 1989

I

1This is an application for certification. The name of the respondent is amended to read:

"Brian Chevrolet Oldsmobile Ltd.".

2The Board finds that the applicant is a trade union within the meaning section l(l)(p) of the Labour Relations Act.

3Having regard to the initial agreement and subsequent representations of the parties, the Board finds that the unit of employees appropriate for a collective bargaining should be framed as follows:

All employees of the respondent in Welland save and except foreman, per­sons above the rank of foreman, office and sales staff.

The Board notes that this bargaining unit description was settled, on agreement, at the outset of the hearing, and that the Board rejected the respondent's later request to propose further bargain­ing unit exclusions. By that time, the membership count had been revealed and it was apparent to all that the "arithmetic of certification" might be "close". In the circumstances, the Board did not consider it appropriate to permit the respondent to change its position. In any event, pursuant to section 6(1) of the Act, the Board is satisfied that the unit described above is appropriate for col­lective bargaining.

II

4In support of its application for certification, the trade union filed documentary evi­dence of membership on behalf of more than seventy-five per cent of the employees in the above-mentioned bargaining unit. This documentary evidence took the form of membership cards, which include a combination application for membership and an attached receipt. These cards are each signed by the subject employee, and the receipts are countersigned by a witness ("the collector"). They indicate that a payment of one dollar has been made to the union in respect of its member­ship fees. The one dollar payment is in the nature of consideration and confirms the act of signing.

5The documentary evidence is supported by properly completed Form 9, Statutory Dec­laration, attesting to its regularity and sufficiency. There is no allegation of any irregularity in the form of this documentary evidence, nor is there any alleged impropriety in the manner in which it was solicited. Certainly there is nothing to call into question the "voluntariness" of the individual acts of signing or to suggest that the employees were not, at the time, indicating their desire to be represented by the applicant union.

6The documentary evidence meets the requirements of section 1(1)(l) of the Act and the form and time limits prescribed pursuant to section 103(2)(j) of the Act. All of the cards were filed with the Board on or before the terminal date. Accordingly, this evidence, standing by itself, dem­onstrates that the union has a level of "membership support" well in excess of that required by sec­tion 7(2) of the Act, for certification without recourse to a representation vote.

7There was also filed with the Board a timely "statement of desire" or "petition", signed by a number of employees indicating that they wish to oppose the certification of the applicant. This timely petition included the names of certain individuals who had previously signed member­ship cards and paid one dollar in respect of membership fees, and, therefore, were "members" of the union within the meaning of section 1(1)(l) of the Act. These individuals had had a purported change of heart, and allegedly no longer wished to support the applicant's certification. It was apparent that if the change of heart was a voluntary one so that the union's documentary evidence may not reflect the employees' subsequent wishes, the Board, (in accordance with its usual prac­tice), would exercise its discretion to order a representation vote to resolve the question.

8This is the course of action urged upon us by both the respondent employer and the employee objectors. They argue that, in the circumstances of this case, the formalities required by the Act and the Board (writing, signatures, consideration, witnesses) are still insufficient to indi­cate the employees' real intentions - even though in a commercial context they might be quite suffi­cient to create binding and enforceable contractual obligations. They argue that a representation vote is necessary to clear the air and determine what the employees really want. The union replies that the petition is not a voluntary expression of employee wishes and therefore does not provide a reliable basis for the exercise of the Board's discretion to direct a vote.

III

9The system of certification prescribed in Ontario by the Labour Relations Act rests pri­marily upon an assessment of the union's membership support based upon an examination of its documentary evidence of membership. Upon showing the requisite membership support, the union is "certified" or granted a licence to bargain on behalf of a group of employees - subject, of course, to their right to file a timely application terminating bargaining rights. The Board does not solicit viva voce opinions about trade union representation (see Rule 73(2) which prohibits that), nor, in this jurisdiction, is a representation vote the primary vehicle for achieving the right to represent employees. That right depends upon the solicitation of a sufficient number of membership cards authorizing the union to act as bargaining agent. To protect employees from possible employer reprisals the anonymity of the union supporters is preserved (see section 111 of the Act).

10This process has been in place for more than thirty years, and doubts about how the Board should go about its task have frequently been resolved by amending the statute (as, for example, to resolve the question of what is a "union member" and the "question" the Board was to ask itself in this regard which prompted section 1(1)(l)). Indeed there is now an elaborate statu­tory and regulatory framework governing union membership evidence, as the Board has sought to apply sections 1(1)(l) and 103(2)(j) to the special circumstances of particular cases - as, for exam­ple, where the one dollar payment is loaned to a potential union supporter, or where the card is not properly witnessed, or where the card is valid on face but has been obtained through mis­representation or intimidation, or where there is a problem respecting one or a few membership documents but not the others, etc. Representation votes are a residual mechanism resorted to where the union cannot demonstrate the support of a "clear majority" (i.e., more than fifty-five per cent) based upon "untainted" membership cards, or where, in the Board's discretion, a repre­sentation vote should be held in the particular circumstances of a case. One of those circumstances is a timely and voluntary change of heart by employees who have previously signed union member­ship cards.

11Neither the Legislature nor the Board has taken a myopic view of the realities of the sit­uation. Employees can and do change their minds. They may voluntarily sign a membership card one day, but later wish to reconsider their support for collective bargaining. In some jurisdictions the statute precludes or inhibits such expressions so that certification is based solely on member­ship cards. In others such expressions are irrelevant because the preferred method of testing employee wishes is a representation vote. Ontario has evolved a middle position recognizing the validity of union membership cards, but retaining some flexibility to seek the confirmatory evi­dence of a representation vote where employees have put before the Board a timely "petition" or other document indicating a change of heart. Petitions too have been part of the certification pro­cess for decades.

12The Board recognizes that "statements of desire" (see Form 6), usually in the form of a “petition”, are not regulated by the Act as directly or precisely as union membership evidence. There is no statutory definition equivalent to section 1(1)(l), nor is there any requirement for a monetary payment, in the nature of consideration, confirming the act of signing. There is no statu­tory declaration similar to Form 9 attesting to the regularity and sufficiency of the membership evi­dence. There is usually no confirmatory signature of a subscribing witness. Nevertheless, the exis­tence of such statements appears to be contemplated by section 103(2)(j) of the Act and Rule 73 of the Rules of Practice; and in any event, as we have already noted, the Board has a long-established practice of accepting such petitions and exercising its discretion to order a representation vote where:

(1) the petition is voluntary (as evidenced by testimony adduced in accordance with Rule 73 of the Rules of Practice), and

(2) the petition contains the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt whether these "members" (in accordance with section 1(1)(l)) continue to support certification.

13The Board must be satisfied, however, that when these union supporters sign the peti­tion indicating an apparent change of heart, they are doing so voluntarily, and are not motivated by a perceived threat to their job security or a concern that their failure to sign would be communi­cated to their employer, or could result in reprisals. It must be clear that the circulation of the peti­tion is free from the actual or perceived influence of management.

14Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargain­ing, or by a reluctance to identify oneself as a union supporter when presented with the petition document? An employee can be reasonably assured that his support for the union will not be com­municated to his employer, but he may have no such assurance concerning his refusal to sign a petition opposing the union.

15Frequently, (again as in the present case), petitions are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be perceived to be acting on its behalf. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign because of employer conduct which suggests that continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case can one regard his signing the petition as being truly voluntary - although, of course, the mere identity of interest between the employer and the objecting employees is obvi­ously not sufficient in itself to link the petition with management in the minds of reasonable employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits. On the other hand, in the Board's expe­rience there are enough instances where employers have sponsored or supported anti-union peti­tions, or have threatened layoffs, cut-backs or plant closures if the employees opted for collective bargaining, that these employee fears cannot be discounted.

16It is for this reason that the Board undertakes the inquiry contemplated by Rule 73(5) of the Rules of Practice, in order to satisfy itself from the circumstances of the origination, prepa­ration, and circulation of the petition, that the document truly represents the voluntary wishes of those who signed it. In Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board discussed the nature of this inquiry in a long passage to which we might usefully refer:

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 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 to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or inter­fered with the free exercise by employees of their rights under the Act, that the Board has required evidence 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. (5ee Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)

Reference might also usefully be made to the following passage from Baltimore Aircoil Interameri­can Corporation, [1982] OLRB Rep. Oct. 1387, where the Board reaffirmed its approach to such employee statements:

Before reviewing each of these issues it is useful to understand the general legal and policy back­ground against which petitions are considered by this Board. There is usually and naturally an identity of interest between an employer and those of his employees interested in opposing an applicant trade union. In this context the circulation of a statement of desire involves petitioners approaching their fellow employees to solicit support. Understandably, an employee so approached may worry or feel anxious that his refusal to sign such a petition will become known to his employer given this natural interest employers have in employees opposing the trade union. But, this identity in interest between employer and opposing employees, standing alone, has never been viewed by this Board as undermining the reliability of signatures places on a cir­culated petition. If this were not so, a petition could never be found to be voluntary. On the other hand, this is not to say that a similarity in interest between employer and petitioners is irrelevant and, indeed, it is the reason why this Board subjects the origination and circulation of a statement of desire in opposition to an application for certification to considerable scrutiny. There is an onus on those employees who present the documentary evidence to the Board to demonstrate that the signatures contained therein constitute a voluntary expression of the wishes of those employees who on recent and earlier occasion joined the applicant trade union.

It is in this context that the Board, in the often cited Pigott Motors (1961) Ltd. case, 63 CLLC ¶16,264, made the following observations:

41. Actions by either the employees opposing the trade union or the employer can adversely affect the reliability of a statement of desire. Direct and open support by an employer will obvi­ously suggest a relationship between the employer and the petitioners that would reasonably cause anxiety in the minds of employees approached by the petitioners. Therefore, in such cir­cumstances, it would be just as reasonable to infer that the employees signed the document to conceal their support for the trade union as it would be to conclude that they signed voluntarily. Where this is the case, the Board usually takes the view that the petitioners have not satisfied the onus on them and the statement of desire is dismissed as an unreliable indicator of the true wishes of the employees. Similarly, actions by the petitioners without support of the employer can equally destroy the reliability of a statement of desire. Circulating a document in the pres­ence of foremen or representations clearly indicating support by the employer can produce the same anxiety in the minds of employees whose signatures are solicited and thus prompt the Board to respond in a similar fashion.

With this background, then, we turn to the circumstances of the instant case.

IV

17A hearing in this matter was held in Toronto on Friday, April 7, 1989. At the conclu­sion of the evidence, both the applicant and the respondent made representations respecting the witnesses' relative credibility. We have considered those representations but we do not think that this case turns upon the veracity of the various witnesses. In our opinion, all of the witnesses gave their best recollection of the events in question, and any gaps or inconsistencies were related to the natural inability of witnesses to recall with precision events which were not considered legally sig­nificant at the time. We do observe, however, that:

a) Dino Pennimpede who was actively involved in the origination, prep­aration and circulation of the petition and, on the evidence, insti­gated an employer- employee meeting about which there was much controversy, did not give evidence.

b) Brian Cullen, the owner of the respondent, whose remarks were also the subject of debate did not give evidence.

c) David D'Amico, the general manager, who took notes of what was said at that meeting did not refer to those notes when giving his evi­dence and, in any event, did not significantly contradict the recollec­tions of the union witnesses who were present.

18In the discussion below, we will occasionally refer to employees as P1, P2, P3, etc. We do so because, pursuant to section 111 of the Labour Relations Act, the Board endeavours to main­tain the confidentiality of persons who signify support for, or opposition to, a trade union. We will also base our decision upon the documentary evidence before us, even though the representative of the objecting employees testified that there was some confusion on the part of some of those who signed her anti-union document, with the result that they may have signed under the impres­sion that they were affirming their support for the union.

V

19The only witness on behalf of the petitioners was Roberta Mater. Ms. Mater has been a parts clerk for approximately 7 months. However, the idea of a petition against the union was not exclusively her own. That idea came from Pennimpede who suggested that if an anti-union petition was filed with the Board by March 29,1989 the union's certification application might be rejected. Mr. Pennimpede's observation may have been based upon the text of the Form 6 notice which had been posted the day before and which sets out both the way in which employees may register their objection and the time by which they must do so. We do not know precisely where the idea came from.

20On the evening of March 22, Ms. Mater made a photocopy of the Form 6 document, which she took home for further consideration. From her reading of the notice, she drafted a rough copy of the petition. The following morning she surreptitiously typed the document which eventually made its way to the Board. We use the term "surreptitiously" because she does not nor­mally use the typewriter in question, and when another employee appeared on the scene, she mis­represented what she was doing. She told the Board that, on her husband's advice, she was trying to "keep the petition quiet" because if she talked to management it might be rejected. She also told the Board that she had no conversations about the petition with any member of management.

21Mr. D'Amico was firm in his recollection that he had heard about the petition or the possibility of a petition on March 22, the day before it was actually drafted and circulated. Mr. D'Amico could not recall how he came by this information. He said that he "heard it on the grape­vine -

22If Mr. D'Amico is correct, management was somehow aware of the petition before it was even drafted. At the very least, management was aware of the petition at the time of the above-mentioned meeting which took place on March 23rd.

23Once the petition was typed it was hidden in a wiper blade box in a stock room close to where Ms. Mater works. Both she and Mr. Pennimpede brought persons there to sign the docu­ment. Employees P1 to P7 signed the petition in the stock room between 8 and 10 a.m. on March 23. In all but a couple of cases, Ms. Mater was personally present to witness those signatures. We do not know what was said to those employees by Mr. Pennimpede to prompt them to sign.

24On March 23rd, at approximately 10:00 a.m. there was a rather unusual meeting of employees with the respondent's senior management. It is not entirely clear how that meeting came about. We were told that it was arranged by Mr. Pennimpede who approached management to demand an immediate meeting with Mr. Cullen, the company's owner. Since neither the man­agement officials approached nor Mr. Pennimpede gave evidence, we do not know the substance of those discussions. We do know that it is not common for such meetings to take place on com­pany premises during working hours.

25We also know that at this rather unusual meeting took place, that Mr. Cullen did address quite a number of employees and that the seating arrangements for the meeting placed Ms. Mater and Mr. Pennimpede at the head of the table directly in front of Mr. Cullen and Mr. D'Am­ico. There is really little doubt about the apparent leadership role of the two prime-movers behind the petition or that this was recognized both by management and the employees in attendance. At the meeting they were provided with letters confirming that the meeting was not instigated by man­agement and promising to improve ventilation in one area of the shop -a matter of some concern to certain employees. Indeed, according to Ms. Mater, some employees had earlier told her that if the company was prepared to make that commitment they would sign her anti-union petition.

26In his remarks to the employees, Mr. Cullen canvassed or responded to a number of employee concerns. Some of these were unexceptional and need not be canvassed here. What is more troublesome is the employer's repeated indications that if the employees opted for collective bargaining (as is their right under the Act) there would be a reduction of work opportunities, lay­offs and the subcontracting of work now done by members of the bargaining unit.

27We have no doubt that, whether the employer intended it or not, that was the message which employees could reasonably take from that meeting: joining the union put their jobs in jeop­ardy. At one point, Mr. Pennimpede openly demanded of a union supporter whether "if the union gets in and I lose my job you are going to pay my mortgage". When Mr. Pennimpede asked whether his job was safe, he was told by Cullen that he didn't know. This conversation occurred in the context of a discussion about job loss at the respondent's unionized location in St. Catharines.

28Witnesses Stoop and Cavers told the Board that they were under no illusion about "the message". Stoop said that he and others wanted trade union representation but did not want their fellow employees to lose their jobs. Cavers testified that as a result of Cullen's remarks he con­cluded that if he did not sign the petition he would lose his job, and assumed that Cullen would be aware of who had signed and who had not. As it turned out, just as the meeting was concluding Ms. Mater left her place near the head of the table, came around to where Cavers was sitting, pre­sented the petition to him, and collected his signature. At the time Cullen and D'Amico were still at the other end of the table. Other employees signed the petition immediately after the meeting.

DECISION

29The circumstances of this case are a little unusual because we are persuaded that some of the signatures reflect the voluntary wishes of the signatories, but we are not persuaded they all do. The evidence is somewhat incomplete about the origination and circulation of the petition and the role of Mr. Pennimpede whose idea it allegedly was, who was present when many of the signa­tures were collected, who arranged the meeting with management mentioned above, and who was a principal actor at that meeting; however, these matters, even when viewed cumulatively, do not really cast doubt on the "voluntariness" of the signatures of P1 to P7. We do not think P1 - P7 would reasonably conclude or suspect the hand of management in the circulation of the petition.

30On the other hand, we are not persuaded that the petition document reflects the volun­tary wishes of signatories P8 to P13 who signed not only after particular promises made to the employees, but also after obvious (even if unintentional), indications from senior management that joining a trade union or engaging in collective bargaining would result in a loss of their jobs. That was the inference taken by witnesses Stoop and Cavers, andy in the circumstances, it was an entirely reasonable one. Whether or not the respondent actually would reduce its staff if the employees were unionized is not in question. That is the consequence which it outlined for the employees; and it is hardly surprising, thereafter, that quite a number of union supporters almost immediately signed the anti-union petition.

31In summary, therefore, we are prepared to accept as voluntary employee expressions, the signatures on the petition of employees P1 to P7. We are not prepared to accept as voluntary the signatures of employees P8 to P13, or to give the petition document any weight insofar as their signatures are concerned.

32What is the result? As we have already mentioned, the union has tendered documen­tary evidence of membership on behalf of the overwhelming majority of employees in the bargain­ing unit, but, as we have also found, certain of those employees have voluntarily registered a "change of heart". However, their number does not diminish the support for certification to the point where the Board would exercise its discretion to direct the taking of a representation vote. Even if we accept the "voluntariness" of the petition in respect of employees P1 to P7, the union's application for certification still enjoys the voluntary support of more than 55% of the bargaining unit employees.

33The Board is satisfied on the basis of all the evidence before it 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 March 29, 1989, 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.

34A certificate will issue to the applicant.