[1990] OLRB Rep. December 1243

1062-90-R IWA-Canada, Local 1-2995, Applicant v. Chapleau Forest Products Limited, Respondent v. Group of Employees, Objectors

BEFORE: Ken Petryshen, Vice-Chair, and Board Members W. H. Wightman and R. R. Montague.

APPEARANCES: Paul Falzone, Norm Rivard, Rene Brixhe, Leopold Fontaine and Guy Robitaille for the applicant; Robert N. Gilmore and Eric Scheffers for the respondent; Harold M. Routledge and Rachel Presset for the objectors.

DECISION OF KEN PETRYSHEN, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; December 14, 1990

[1]. This is an application for certification filed on July 18, 1990 by IWA-Canada, Local 1-2995 ("Local 1-2995") in which it seeks to represent a bargaining unit of employees employed by Chapleau Forest Products Limited ("Chapleau Forest" and "the Employer"). (The application was initially filed naming IWA Canada, Local 1-2995 as the applicant and, as one will see below, the Board granted the applicant's request to amend the application.) A Labour Relations Officer met with the parties in Timmins on August 16, 1990 at which time the parties resolved some issues and identified the issues in dispute. The hearing of the application began in Timmins on August 23, 1990, continued on September 20 and was completed on September 21, 1990. At the conclusion of the hearing, the Board advised the parties that it was reserving its decision on whether the petition filed in opposition to the application represented the voluntary intention of those employees who signed it.

[2]. Prior to entertaining evidence relating to the voluntariness of the petition, the Board was called upon to decide three issues. Since the Board had not found the applicant to be a trade union in any previous proceeding, one issue concerned the applicant's status. The other two issues are somewhat related. They concerned the proper name of the applicant and the form of the mem­bership evidence filed by the applicant in support of its application for certification. After enter­taining the evidence and the parties' submissions relating to these three issues and after recessing to consider the matters, the Board provided the parties with oral rulings at the hearing on August 23, 1990.

[3]. Prior to March 1988, Local 2995 was a local union of the United Brotherhood of Car­penters and Joiners of America. In March 1988, an agreement was executed to transfer the mem­bers and jurisdiction of Local 2995 to the IWA-Canada. IWA-Canada has issued a charter to the local with the number 1-2995. Having regard to the oral and documentary evidence before us, the Board was satisfied that IWA-Canada, Local 1-2995 is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and so advised the parties at the hearing.

[4]. Having regard to the agreement of the parties, the Board further finds that all employ­ees of the respondent in the Town of Chapleau, save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period, consti­tute a unit of employees of the respondent appropriate for collective bargaining.

[5]. In order to appreciate the nature of the other two issues, it is necessary to review the recent history relating to IWA-Canada and Chapleau Forest. On May 14, 1990, IWA-Canada applied for certification for the same bargaining unit of employees as in the present application and requested a pre-hearing representation vote. The evidence of membership filed in support of the application consisted of cards in which persons applied to become members of IWA-Canada. The vote was, conducted on June 21,1990 and the IWA-Canada was not successful. In a decision dated July 23, 1990, the Board dismissed the application and imposed in the circumstances the usual six-month bar against the applicant in that matter, the IWA-Canada.

[6]. As noted above, the present application was filed with the Board on July 18, 1990 by a local union of IWA-Canada and not by the national union. The applicant named in this matter is IWA-Canada, Local 1-2995 rather than the correct name of the applicant, which is IWA-Canada, Local 1-2995. The evidence discloses that the applicant in the past has not been careful when refer­ring to itself and has used interchangeably the letter I and a 1 before 2995. As indicated previously, the Charter issued to the applicant discloses that its correct name is IWA-Canada, Local 1-2995. Counsel for the applicant requested leave of the Board to amend the name of the applicant to reflect its correct name.

[7]. In support of the present application, the applicant filed "fresh" membership evidence. The following is a sample of the membership card utilized by the applicant in this case.

[1990] OLRB REP. DECEMBER

APPLICATION FOR MEMBERSHIP

IWA - CANADA, LOCAL 1-2995

Affiliated with CLC

(Please Print)

NAME: __________________________________________________________________________

ADDRESS:_______________________________________________________________________

CITY: ___________________________________________________________________________

Employee of ______________________________________________________________________

Birth Date __________________________________ Phone _______________________________

I hereby request and accept membership in the IWA-CANADA and of my own free will thereby authorize this union to act for me as the collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employment or other conditions of employment. I hereby certify that the amount shown below, was paid by me to be applied to initiation fees or monthly dues of the Union, and as evidence of good faith in my application for membership.

Amount- - ONE - -X/100 Dollars Date

Signature of

Applicant

Signature of Receiver

of above money

[8]. Counsel for the respondent opposed the request for an amendment to the applicant's name. Counsel submitted that membership evidence filed in support of the application was in real­ity membership evidence in IWA-Canada and not Local 1-2995. This submission was based on the following wording on the card: "I hereby request and accept membership in IWA-Canada" with no such reference to Local 1-2995. Given the imposition of the six-month bar against IWA-Canada and the form of the membership evidence filed with the application, counsel argues that the Board should dismiss this application. Counsel also argues that the membership evidence is such that no reasonable employee would be in a position to know what organization he or she was joining. If the Board did not find in favour of the respondent on these matters, counsel for the respondent requested the Board to adjourn the hearing in order to give the respondent the opportunity to review the Board's written reasons for its rulings. Counsel for the applicant opposed these posi­tions while the representative of the objecting employees did not take a position on these issues. During argument on these matters, the parties referred to the following cases: Le Droit Ltee., [1970] OLRB Rep. Dec. 945; Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737; The Journal Publishing Company of Ottawa, Limited, [1974] OLRB Rep. July 499; Swingline of Canada Ltd.,[1971] OLRB Rep. Nov. 710; Union Electric Supply Co. Limited, [1983] OLRB Rep. May 829; The Corporation of the City of Gloucester, [1989] OLRB Rep. Aug. 846; Opera Ghost Productions Inc., [1990] OLRB Rep. March 325; Repla Limited, [1990] OLRB Rep. May 612; The Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184; and Menkes Developments Inc., [1987] OLRB Rep. Oct. 1290.

[9]. The Board advised the parties in its oral ruling on August 23,1990 that it was satisfied in the circumstances of this case that it was appropriate to amend the application to reflect the cor­rect name of the applicant. In the Board's view, the error on the part of the applicant was merely a technical defect and the granting of the amendment would not prejudice any party to the proceed­ing. The name of the applicant on the application and its real name are so similar and the defect so insignificant that no reasonable person could be mistaken with respect to who the applicant was in this proceeding.

[10]. The majority of the panel, with W. H. Wightman dissenting, orally ruled at the hearing that it could find no basis for dismissing the application, having regard to the membership evidence filed by Local 1-2995. In circumstances virtually identical to those before us, the Board in Menkes Developments Inc., supra, determined that the form of the membership evidence was a reliable indication that the employees who signed those cards were members of the applicant. The mem­bership card in that case was different only to the extent that it had a receipt portion which speci­fied the local union. In the majority's view, this is not a material difference. In response to an argu­ment that the cards were ambiguous and were not sufficient to support certification without a vote, the Board wrote the following:

10. Evidence of membership in an International Union is not generally accepted by the Board as evidence of membership in a local thereof. (See for example Bernardin of Canada Limited, [1975] OLRB Rep. Oct. 737). However, membership in a local is accepted as evidence of mem­bership in the parent international (see for example The Explorer Inns, Limited, [1978] OLRB Rep. June 541). In every case, however, the Board will examine the material facts and an appar­ent ambiguity in the documentary evidence will not be fatal provided that, as a whole, it points unequivocally to membership in the applicant (see for example Wallaceburg Hydro Electric Systems, [1975] OLRB Rep. Oct. 783; Union Electric Supply Co. Limited, [19831 OLRB Rep. May 829; General Motors of Canada Limited, unreported decision of the Board dated Decem­ber 28, 1984 in Board File No. 2418-84-R). It was the Board's view that the documentary evi­dence filed in support of this application is sufficiently unambiguous for the Board to be satisfied that it relates to the applicant and that no reasonable employee would have been confused by it. The cards are clearly applications for membership. Further, both the application and receipt portions refer clearly to the applicant. The cards are clearly applications for membership in both the Labourers' International Union of North America and its Local 506. Accordingly, the Board ruled orally that the applicant's documentary evidence of membership is a reliable indication that the employees to whom it relates were members of the applicant.

[11]. Since Local 1-2995 is the applicant, it is required to support the application with appli­cations for membership in Local 1-2995. Applications for membership in IWA-Canada will not suf­fice. In effect, counsel for the respondent argues that the application for membership cards filed with the application only relate to IWA-Canada, or are at least so ambiguous that effect should be given to the bar imposed as a result of the previous application. The Board was satisfied that the documentary evidence filed with the application relates to the applicant and that reasonable employees would not have been confused by it. As in Menkes Developments Inc., supra, the cards before us are applications for membership. In contrast to the cards used in the previous applica­tion, which referred only to IWA-Canada, the cards supporting this application refer clearly to Local 1-2995, the applicant. When one examines the membership cards as a whole, it is clearly an application for membership in both IWA-Canada and its Local 1-2995. It is for these reasons that the majority ruled that the applicant's documentary evidence of membership relates to employees who applied to become members of the applicant.

[12]. In its oral ruling, the Board also advised the parties that it would not adjourn the hear­ing in order to provide them with written reasons for its rulings. In the Board's view, it is important to deal with matters before the Board, particularly certification matters, as expeditiously as possi­ble. In these circumstances, no valid labour relations purpose would have been served by adjourn­ing until written reasons could be provided.

[13]. After dealing with the matters referred to above, the Board proceeded to hear the evi­dence concerning the only remaining issue in dispute, namely the voluntariness of the petition. At the conclusion of the hearing at approximately 5:30 p.m. on August 23, 1990, the cross-examination of the first witness for the objecting employees was only partially completed. The Board offered the parties some continuation dates and, since they agreed the hearing could be completed in two additional days, September 20 and 21, 1990 were fixed for the continuation of the hearing.

[14]. On September 19, 1990, the Board received the following communication by Fax from Mr. David Zimmer:

Re: IWA - Canada, Local 1-2995, and Chapleau Forest Products Limited

This is to advise that I have been retained today to represent the Petitioners in this matter, scheduled for continuation at Timmins, Ontario on September 20th and 21st, 1990.

I am requesting an adjournment of the proceedings to enable me to prepare and adequately deal with the various issues which I understand to be rather complex.

Mr. Falzone does not consent. Mr. Gilmore does consent.

Yours very truly,

"David Zimmer"

David Zimmer

The Registrar followed the Board's usual practice in such circumstances by advising Mr. Zimmer in writing that a party seeking an adjournment must obtain the consent of all parties to the proceed­ing, otherwise such request must be made to the panel hearing the case on September 20, 1990.

[15]. When the hearing resumed in Timmins on September 20, the objecting employees appeared without counsel. They advised the Board that they had been advised by their lawyer not to proceed with the case in his absence. The Board interpreted their comment as as request for an adjournment and proceeded to hear representations from the parties on this issue.

[16]. In essence, the objecting employees requested that the proceeding be adjourned in order that they could make arrangements to have their lawyer present. They advised the Board that they contacted Mr. Zimmer during the previous week and both before and after this contact they attempted to raise funds to pay for a lawyer. The objecting employees indicated that they advised Mr. Zimmer on September 19 that they wanted him to act for them. They stated that Mr. Zimmer advised them on the evening of September 19 that he was unable to attend the hearing on September 20. On behalf of Chapleau Forest, Mr. Gilmore consented to the adjournment. Mr. Falzone, on behalf of Local 1-2995, strenuously objected to the granting of an adjournment and emphasized the prejudice his client would face if an adjournment were granted.

[17]. After entertaining the parties' representations and after recessing to consider the mat­ter, the majority of the panel, with W. Wightman reserving his decision, ruled orally at the hearing that it would not grant the adjournment request. Mr. Wightman now concurs with the ruling of the majority. Our reasons for this ruling are as follows:

[18]. The following excerpt from Catalyst Technology (Canada) Ltd., [1987] OLRB Rep. June 803 at page 805 comments on the Board's practice when faced with adjournment requests:

The usual practice of the Board is to grant an adjournment only on the consent of all of the par­ties to a proceeding, or where a request for an adjournment is based on circumstances which are beyond the control of the party making the request and where to proceed would seriously preju­dice such party. See, for example, Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138, in which the Board wrote, in part, as follows (at paragraph 7):

. . .The Board has a discretion to adjourn any hearing, if it considers it advisable in the interests of justice, for such time and to such place and upon such terms as it consid­ers fit (see section 82(1) of the Board's Rules of Procedure; see also section 21 of the Statutory Powers Procedures Act, R.S.O. 1980, c. 484). In exercising this discretion, the Board has adopted a policy which recognizes the great importance of expedition to the efficacious administration of the Labour Relations Act. In Labour Relations Bureau of Ontario General Contractors Association, [1979] OLRB Rep. 1036, at para­graph 8, the Board stated:

.The usual practice of the Board is to grant adjournments only on the consent of all of the parties to a proceeding. With respect to situations where one party is not prepared to agree to an adjournment, in the Baycrest Centre of Geriatric Care case, [1976] OLRB Rep. 432, the Board stated at page 433:

5. The Board policy with respect to adjournments has been cap­sulized in the Nick Masney case [1968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal ¶70 CLLC 14,024) wherein the Board stated: '... the Board's decision to deny the respondent's request for an adjournment was based on the Board's practice to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party i.e., where it is proven that a witness essential to the party's case is unable to attend because of serious illness...'

The powers of the Board with respect to adjournments were confirmed by the Ontario Divisional Court in Re Flamboro Downs Holdings Ltd. And Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 OR. (2d) 400, at pages 404 and 405:

"Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and of law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdic­tion, it is for the Board to decide whether it should adjourn pro­ceedings before it and in what circumstances.

This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of nat­ural justice. There are circumstances in which that might be so: see, for example, R. v. Ontario Labour Relations Board, Ex p. Nick Masney Hotels Ltd. 1970 CanLII 478 (ON CA), [1970] 3 O.R. 461, 13 D.L.R. (3d) 289 (C.A.); Re Gill Lumber Chipman (1973) Ltd. and United Broth­erhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, com­ply with the provisions of the Statutory Powers Procedure Act 1971 (Ont.) c.47, and afford the parties the opportunity to be present and be represented if they wish by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his conve­nience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvi­ous desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.

It cannot be suggested that the Board may not in the exercise of is discretion adopt a general policy respecting adjournments of its proceedings: see The King v. Port of London Authority, Ex. p. Kynock, Ltd., [1919] 1 K.B. 176. That policy is obviously neces­sary to the proper administration of the Board's process..."

[19]. In Joe Portiss, [1983] OLRB Rep. Sept. 1554, a complainant requested an adjournment on the ground that between the first and second day of hearing he had discharged his counsel and needed time to retain and instruct a new lawyer. The following comments and reasons of the Board for denying the adjournment are applicable to the circumstances before us.

It is the general practice of the Board not to grant an adjournment unless it is agreed to by the parties, except in extraordinary circumstances. Extraordinary circumstances would generally include unforeseen events beyond the control of a party, such as illness or difficulties in travel due to severe weather. The Board does not generally adjourn a hearing on the request of a party for time to seek legal counsel, particularly where that party had ample notice of the hear­ing and a reasonable time to retain and instruct counsel beforehand. In this case Mr. Portiss had, by his own admission, some nine days between his disagreement with his former counsel and the resumption of the compensation hearing. We do not see in these circumstances any rea­son to grant an adjournment merely because the complainant was not entirely satisfied with the Board's interim rulings. Among the items of dissatisfaction Mr. Portiss cited the failure of coun­sel to adduce evidence to explain why Mr. Portiss voluntarily took a layoff from a job with Com­bustion Engineering. Given the Board's determination in paragraph 30 of its decision of July 11, 1983 that that event would weigh against Mr. Portiss in the assessment of compensation, we are satisfied that he was or should have been aware of that outcome over two months ago. In our view he had ample time to attempt to retain and instruct counsel, or to weigh and accept the alternative of completing the hearing with the lawyer he initially retained. The Board is also mindful of the prejudice which an indefinite adjournment could cause the respondent unilsn, whose membership has obviously been divided by the ongoing controversy .surrounding this complaint. Fairness to both parties and concern for the labour relations process require that this matter be disposed of without undue delay, in keeping with the Board's normal rules of proce­dure. For the foregoing reasons the Board ruled at the hearing that it would not depart from its normal procedures and that Mr. Portiss' request for an adjournment was denied.

[20]. The parties to this proceeding were advised by a notice dated July 25, 1990 that a hear­ing was scheduled for August 23, 1990 at Timmins. The objecting employees appeared at the August 23 hearing without counsel and participated in the proceeding. Subsequent to the August 23 hearing, they determined that they wished to be represented by counsel. The objecting employ­ees had approximately one month to select and instruct a lawyer who would be available for the continuation of the hearing. They did not make any effort to contact a lawyer until the week prior to September20 and it appears they did not retain him until September 19. The objecting employ­ees had sufficient time to obtain the services of a lawyer who would have been able to represent them at the continuation of the hearing on September 20. The Board has before it a certification matter with a petition, which from a labour relations perspective requires a speedy and expeditious resolution. The objecting employees requested the adjournment for their convenience or for the convenience of their lawyer and as the Court noted in Re Flamboro Downs Holdings Ltd. and Teamsters Local 879, supra, a party is not entitled to insist on an adjournment on such grounds. When weighing the competing interests, the majority was satisfied that it would have been inap­propriate to grant an adjournment in the circumstances of this case.

[21]. After providing the parties with the ruling denying the adjournment, the Board set the matter down for some time in order to give the objecting employees time to consider whether they would take their lawyer's advice or continue to participate in the hearing. Ultimately, they deter­mined that they would continue to participate.

[22]. We turn now to the issue of whether the petition represents a voluntary expression of employee wishes. R. Pressé and H. Routledge testified concerning the petition and they called R. Brixhe and M. Marquis to give evidence. Counsel for Chapleau Forest called E. Scheffers to tes­tify. Local 1-2995 called J. Mitchell., J. Hoffman and R. LeClerc to give evidence. In making our factual determinations, the Board has carefully reviewed all of the oral and documentary evidence and the parties' submissions relating thereto.

[23]. Ms. Pressé and Mr. Routledge were the two bargaining unit employees primarily involved in securing support from employees who opposed the certification of the applicant. As noted earlier, the IWA-Canada lost a representation vote held on June 21, 1990. It was within a short time after the vote that Ms. Pressé and Mr. Routledge, as well as other employees, noticed that another campaign to secure membership cards was in progress. Since they felt the employees had spoken on the issue of unionization and since they understood a bar of some duration would be imposed on the union, some employees decided to oppose the certification of the applicant after they determined that there would be some support for such an effort among the employees. Ms. Pressé and Mr. Routledge assumed the task of preparing the petition and circulating it in an effort to secure signatures.

[24]. The Board heard extensive evidence concerning the origination, preparation and circu­lation of the petition. We find it unnecessary to set out this evidence in detail. After canvassing the views of some employees, Ms. Pressé and Mr. Routledge prepared the document on July 19, 1990 and beginning on that day until July 26, 1990, Ms. Pressé and Mr. Routledge circulated their peti­tion attempting to secure signatures from employees. They had prepared three separate pages, two with the preamble in English and one with the preamble in French. Mr. Routledge primarily approached the English employees while Ms. Pressé approached both French and English employ­ees. When approaching employees, they briefly explained the purpose of the petition and advised employees it would only be sent to the Labour Relations Board and the local MP and MPP. The majority of the signatures on the petition were placed there by employees while on the Employer's premises. The petition was sent to the Board prior to the time Local 1-2995 filed its application for certification. Although some employees signed the petition prior to signing a membership card, Ms. Pressé and Mr. Routledge were able to secure the signatures of enough persons who had pre­viously signed membership cards that the Board would ordinarily exercise its discretion to order a representation vote if the change of heart of these employees was voluntary.

[25]. The evidence before us does not disclose, nor was it argued on behalf of the applicant, that the management of Chapleau Forest was involved in the origination, preparation or the circu­lation of the petition. However, Local 1-2995 argues that we should not find the petition to repre­sent a voluntary expression of employee wishes having regard to certain evidence relating to the preparation and circulation of the petition, as well as what it alleges to be the lack of credibility of Ms. Pressé. The Board will review these arguments made on behalf of Local 1-2995 and the evi­dence that they relate to. Before doing so, it will be useful to review the approach the Board takes in deciding whether a petition represents a voluntary expression of employee wishes.

[26]. There is an onus on objecting employees to satisfy the Board on the balance of probabilities that the petition filed in support of the application represents a voluntary expression of employee wishes. When assessing the voluntariness of a petition, the Board has regard to the over­all environment in the workplace as well as the responsive nature of the employer-employee rela­tionship. The Board will not give any weight to a petition where someone in a management capac­ity has been involved in the origination or circulation of a petition. But even if management is not involved, the Board will still give the petition no weight where the evidence demonstrates that the manner in which the document was prepared or circulated would lead reasonable employees to conclude that management was involved in the petition or might become aware of who did or did not sign the document. The impact on employee wishes is the same when management has a direct involvement or when employees simply perceive that management is involved.

[27]. Support for the preceding observations in a certification context can be found in the fol­lowing two cases. In Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board stated:

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 desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC 16,264 in the following terms:

In view of the responsive nature of his relationship with his employer and of his natu­ral desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or inter­fered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in decid­ing whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its orig­ination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not manage­ment might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)

And in Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, the Board made the following comments:

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 this prompt the Board to respond in a similar fashion.

[28]. In making its submissions, Local 1-2995 referred to a number of aspects of the evidence which it argued demonstrates that the conduct of Ms. Pressd and Mr. Routledge would cause rea­sonable employees to believe that management was supporting the petitioners or to believe that management would discover who did sign the petition. It also referred to some aspects of the evi­dence with a view to demonstrating that Mr. Routledge and particularly Ms. Pressd were not credi­ble witnesses. Local 1-2995 relies on the cumulative effect of the evidence which we will refer to below.

[29]. There were some inconsistencies in the evidence of Ms. Pressd and Mr. Routledge with respect to who witnessed what sigilatures. Ms. Press~ was initially certain that she witnessed the signature of P15 but later indicated she was not so sure. She testified that she did witness the signa­ture of P39 and that she did not witness the signature of P48. Mr. Routledge stated that he wit­nessed the signature of P15 and P39. He also testified that he did not witness the signature of P48. Local 1-2995 argues that we should infer from the inconsistencies, particularly when both say they did not witness the signature of P48, that someone else was involved in obtaining signatures con­trary to the evidence of the petitioners.

[30]. While obtaining signatures, Ms. Pressd would occasionally drive a truck which her com­mon-law husband had purchased from Chapleau Forest. Mr. R. Parent, her common-law husband, is a close friend of N. Lacente, a foreman with Chapleau Forest. Lacente and Parent often see each other socially, would hunt together, etc. When Ms. Pressd and Mr. Routledge were engaged in attempting to draft the preamble to the petition on July 19 in the lunchroom, they asked B. Legge if he could prepare the petition on his computer. There were a number of employees in the lunch­room at the time when B. Legge indicated he would prepare the petition on his computer. B. Legge is a bargaining unit employee whose brother is a foreman for Chapleau Forest.

[31]. J. Mitchell, a bargaining unit employee, testified that employees in the mill were afraid to lose their jobs and in order to protect their jobs employees signed the petition. When asked for the basis of this statement, J. Mitchell stated that an operator told him that he had to think of his job and that he could not take the chance of losing his job by not signing the petition.

[32]. J. Hoffman, another bargaining unit employee, testified concerning an event which he said occurred in July 1990. He went to speak to an employee by the name of St. Martin just after St. Martin had talked to N. Lacente and another bargaining unit employee. St. Martin told Hoff­man that Lacente agreed with the suggestion that the Mill could close if a union was certified. St. Martin also told Hoffman that he would obtain a job then held by another employee when that employee was fired since he had signed a union card.

[33]. A review of the above arguments does not convince us that the circumstances referred to, even when viewed cumulatively, taints the petition. We are not prepared to infer that someone other than Mr. Routledge and Ms. Pressé circulated the petition as a result of their inconsistent evidence concerning a few signatures. The Board is satisfied that Mr. Routledge signed P15 and that the voluntariness of P39 and P48 has not been established due to a failure on the part of the petitioners to remember which one of them secured the signature. The evidence of the petitioners concerning the movement back and forth of the petition between them and where it was kept when neither had it in their possession convinces us that it would be inappropriate to infer that someone other than Mr. Routledge and Ms. Pressé circulated the petition.

[34]. The vehicle used by Ms. Pressd, Parent's relationship with Lacente and the incident with B. Legge in the lunchroom on July 19 are not matters which would affect the perception of reasonable employees. Mr. Parent was successful in a bid to purchase the truck approximately two years ago. The truck does not have the Employer's name on it. The connection between Ms. Press~'s driving of this truck and Chapleau Forest is so remote that it could not have an impact on reasonable employees. The Board has held that a relationship between an employee involved with the circulation of a petition and a member of management is a relevant factor in a petition inquiry and the weight to be given to such a factor depends on the facts in each case. (See Otto's Deli, [1980] OLRB Rep. Nov. 1673.) Although Mr. Parent has a close relationship with Mr. Lacente, there is no evidence to suggest that Mr. Parent played any role in the circulation of the petition. Some employees did hear B. Legge agree to prepare the petition on his computer. However, B. Legge was not involved with circulating the petition. The link between the petitioners and manage­ment through Parent and B. Legge is so indirect that the Board is satisfied that these circumstances would not have an inappropriate impact on the perception of reasonable employees.

[35]. The Board also finds it cannot give any weight to the evidence of J. Mitchell and J. Hoffman referred to above. For the most part, this evidence was hearsay in nature. J. Mitchell's evidence of what the operator said to him may reflect no more than a general concern during an organizing campaign, as opposed to concerns created by the improper conduct of an employer or petitioners. In addition to its hearsay nature, the evidence of J. Hoffman lacks precision as to time and there is no evidence that anyone other than three bargaining unit employees were aware of the incident.

[36]. The Board has determined that three other arguments made by Local 1-2995 do have merit. The first concerns the wording of the preamble on the petition and the letter to employees from Chapleau Forest dated July 19, 1990. The second relates to the precise manner in which the petition was circulated. The third concerns the evidence of Ms. Pressd and her credibility.

[37]. During Local 1-2995's campaign, E. Scheffers, the General Manager of Chapleau For­est, issued two letters to employees. The second of these is dated July 19, 1990 in which Mr. Schef­fers indicates that he has received complaints from employees of harassment by union organizers to sign union membership cards. The preamble to the petition also makes reference to harassment by the union. The letters from Chapleau Forest to the employees do not contravene the Act and the reference to harassment by the union in the July 19 letter and the preamble to the petition does not demonstrate actual collusion between management and the petitioners. However, the reference to harassment by the union in both the company letter and the petition at approximately the same time may have given reasonable employees the perception that a link existed between management and the petitioners.

[38]. Of greater concern is the manner in which the petition was circulated. As noted earlier, the vast majority of the signatures on the petition were obtained on the premises of Chapleau For­est. Both Mr. Routledge and Ms. Pressd work in the planer building while it appears that a larger percentage of the employees work in the sawmill building. Both petitioners would have occasion to go into the sawmill building but Ms. Pressd agreed with the suggestion that the number of trips she made from the planer to the sawmill was very frequent to the point of being unusual during the period of time she circulated the petition. Ms. Pressd and Mr. Routledge both testified that they were not on working time when they approached employees on the Employer's premises to sign the petition. Mr. Routledge did approach some employees during work hours and asked them to sign the petition. Ms. Pressd indicated during her examination by the Board that she only approached employees during non-working hours, i.e., during their lunch period and breaks. There is evidence that both Mr. Routledge and Ms. Pressd were confronted on separate occasions by P. Joffit, a foreman, while they were circulating the document in the sawmill. During the early evening, Mr. Routledge was asked by Mr. Joffit why he was in the sawmill. This discussion took place on the catwalk, an elevated area which could be easily observed by employees in the sawmill. After the discussion with the foreman, Mr. Routledge began to circulate the petition. On another occasion, Ms. Pressd was circulating the petition while Mr. Joffit was observing her activity on the catwalk. Mr. Joffit spoke with Ms. Pressd and asked her what she was doing. After telling him she was there to see an old friend, Ms. Pressd left the sawmill.

[39]. Petitioners who circulate their petitions on an employer's premises run the risk, depend­ing on all of the circumstances, of having the Board conclude that the petition does not represent the voluntary wishes of employees. Management ultimately is in charge of the premises and employees are generally aware that management would prefer not to be unionized. These factors, along with the particular circumstances in a given case, could lead reasonable employees to believe that management is behind the petition or will discover who signed the petition if the petition is cir­culated on the employer's premises. In this case, Ms. Pressd conceded that she spent an unusual amount of time in the sawmill. The fact that Mr. Joffit confronted both petitioners on separate occasions to inquire why they were in the sawmill suggests that management monitored employees to a significant degree. Mr. Routledge approached some employees during their working hours and the evidence indicates that Ms. Pressd did on at least one occasion. Employees who have their work interrupted by a petitioner might reasonably believe that this could only occur if management supported the efforts of the petitioners. As noted above, Mr. Routledge spoke to Mr. Joffit and then circulated the petition while on another occasion Mr. Joffit observed Ms. Pressd circulating the petition. Although the evidence does not suggest that these contacts with the foreman were anything but innocent, reasonable employees who were in a position to observe them would be led to conclude that management and the petitioners had joined in an effort to oppose the certification of Local 1-2995. Given the sensitive nature of the employer-employee relationship, the way in which the petition was circulated as detailed above would likely lead reasonable employees to believe that management was involved in the petition exercise and that a failure to sign the petition would come to the attention of management.

[40]. Finally, the Board does have some concern with respect to the credibility of Ms. Pressd. As noted above, she testified on the first day of hearing that she did not approach employees to sign the petition while they were working. On the second day of hearing, at a time when Local 1-2995 had summonsed at least one witness who could challenge this aspect of her evidence, Ms. Press~ testified about one occasion in which she did approach employees when they were not on a break or at lunch, but while they were working. The Board is left to wonder whether there may have been other instances when Ms. Pressd approached employees while they were working. In addition, Ms. Pressd was asked in cross-examination why she decided not to approach employees while they were working and her response to the question did not answer it. This leaves the Board to speculate again as to why she chose to circulate the petition in the way she did. Since the onus in a petition case is on objecting employees, and since the objecting employees are the only ones who have knowledge about aspects of the origination, preparation and circulation of the petition, it is important for them to provide the Board with credible evidence. Ms. Pressd did not meet this obli­gation.

[41]. Having regard to the matters addressed in paragraphs 37, 38, 39 and 40, the Board can­not be satisfied that the petition filed in opposition to the certification of Local 1-2995 represents a voluntary expression of those employees who signed it. Accordingly, the Board can give it no weight.

[42]. The 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 August 7, 1990, 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.

[43]. A certificate will issue to the applicant.

DECISION OF BOARD MEMBER W. H. Wightman; December 14, 1990

1. I found Rachel Pressd and Harold Routledge to be articulate, credible witnesses who, notwithstanding the absence of legal guidance, were able to persuade me that they represented people whose true feelings if not in opposition to the union are at least of the view that all employ­ees should be entitled to express their wishes through a secret ballot vote.

2. The majority have denied the employees an opportunity to express their wishes through a vote on the basis of reasoning which involves drawing a long bow in order to conclude the peti­tion was not voluntary. I would have found it to be voluntary and accordingly, I would have

ordered a secret ballot vote as provided for in the legislation.

CONCURRING OPINION OF BOARD MEMBER RENE R. MONTAGUE; December 14, 1990

1. On numerous occasions, the members representing management in their dissents have expressed "their policy" that in all cases a representation vote should be held without regard to the evidence where unions have membership evidence in excess of 55%. This obstinacy in face of legis­lative mandate given to the Board to exercise its discretion is clearly unacceptable. "Their Policy" goes back to at least 1976, see New Strathcona Hotel (Toronto) Ltd. 1778-75-R; Rohynco Painting Contractors 1242-81-R; Schenker of Canada Limited 0077-82-R; Four Season's Hotel Toronto 0701-83-R just to name a few. I need quote only one of the dissenting opinions - Schenker of Canada Limited 0077-82-R at paragraph 2; "My concerns over the practice of eschewing the use of a secret ballot in preference to other indicia of employees wishes are perhaps equally well known and need not be repeated here". This policy and theme still prevails with the majority of the man­agement representatives and has been reiterated yet again in Johnson Controls Ltd. [1990] OLRB Rep. June 1990. This consistently inflexible position in "Certifications" without regard to the evi­dence or the Legislation, is a regressive policy and does nothing for Labour Relations to-day or their role as adjudicators.

2. The Ontario Labour Relations Act section 7(2) reads as follows:

If the Board is satisfied that not less than 45 per cent and not more that 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

[emphasis added]

3. Former Chairman George Adams, in his book Canadian Labour Law, summarized the issue of automatic certification as follows: "In Canada, documentary trade union membership evi­dence, serves as a labour board's primary barometer for the gauging of employee support for col­lective bargaining. In all the Canadian jurisdictions except British Columbia and Nova Scotia, labour boards need not resort to a representation vote if the applicant union can show documen­tary evidence that it has sufficient membership support in the proposed bargaining unit. In the interest of expedience, and to add a greater certainty to the certification process, collective bargaining statutes have equated employee wishes with membership evidence, thus providing the boards with a practical alternative to the representation vote for assessing employee wishes. (355)"

4. The objectives of certification by membership evidence were enumerated by Professor and former B.C. Chairman Paul Weiler in his book Reconcilable Differences. The objectives were to facilitate employee choice of collective bargaining, to minimise conflict from the employer's wielding economic power, and to safeguard future relationships between the union and the employer from being poisoned by charges and anti-charges during the election. With specific regard to the election period, Professor Weiler stated "...the labour relations version of the Mar-guess of Queensbury Rules tend to be ignored by employers..." This Board has had ample oppor­tunity to comment on the Board's discretion to order a representation vote when the union satisfies the Board that more that 55% of the employees are members of the union.

5. In Cleveland-CAE Metal Abrasive Limited [1979] OLRB Rep. Feb. 81, the Board stat­ed:

The majority principle is a cornerstone of the labour relations system which operates in this jurisdiction. The Board confers bargaining rights covering all of the employees in the bargaining unit found appropriate for collective bargaining when satisfied that the applicant trade union represents the majority of the employees. Having regard to the principle of majoritarianism as rooted in the Act, it is the practice of the Board to certify without a vote when satisfied that membership evidence within the meaning of the Act has been submitted on behalf of more that 55% of the employees in the unit.

6. In Baltimore Aircoil Intra-American Corporation [1982] OLRB Rep. Oct. 1387 at para. 49, chairman George Adams stated that to order votes as a general matter would be to "...ignore the emphasis the statute places on membership cards as the method of determining the employees' wishes where this support is in excess of 55%".

7. The current Chair of the Board, Mr. Mitchnick, has also stated the preference of the Board for certification without representation vote when the Board is satisfied of the membership evidence. In Walbar Canada Limited [1982] OLRB Rep. Nov. 1734, the Board stated at paragraph 17:

The scheme of the Act in place in this province clearly establishes that, as a starting point, evi­dence of membership in excess of 55% of the bargaining unit will normally entitle an applicant to certification without the additional step of a representation vote... The discretion entrusted to the Board under section 7(2) is an important safeguard for employee wishes, but the Board has always made it clear that it will be exercised only for compelling reasons and on the basis of cogent evidence.

[emphasis added]

8. Anyone doubting the approach of the Board to the issue of certification when more than 55% of the employees are members of a trade union should carefully examine D. E. Winter Plumbing and Heating Ltd. [1987] OLRB Rep. Oct. 1228:

The object in certification proceedings is to determine whether a majority of employees found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their employment dealings with their employer. The Labour Relations Act pro­vides that the certification of trade unions in the province is based primarily upon assessment of the trade union's membership support as evidence by membership records filed in support of an application. . . In Ontario, as in most Canadian jurisdictions, the representation vote exists as a residual mechanism for ascertaining the wishes of bargaining unit employees in cases where either the applicant union does not have the support of more than 55% of the bargaining unit employees which is necessary for outright certification of section 7(2) of the Act... or where the circumstances are such that the Board sees fit to require a vote to be held notwithstanding that there is documentary evidence showing membership in excess of 55%. The Board's discretion in that respect must be exercised in a manner that is consistent with the legislated primacy of the membership evidence as the means by which employee wishes with respect to certification are ascertained.

[emphasis added]

9. Anyone familiar with the basics of administrative law knows that a tribunal which is given discretion cannot fetter that discretion by adopting a fixed rule of policy which does not allow the tribunal to exercise that discretion. Arbitrary insistence upon a representation vote when membership evidence is in excess of 55%, is in my view an attempt to fetter the discretion which was granted by the Legislature to the Board under section 7(2).

10. By insisting upon a representation vote in all circumstances, management members are seeking to commit the Board to an impractical, costly and time consuming procedure which the Legislature has determined is not appropriate when membership evidence is satisfactory to the Board. There is no logical reason for this Board to ignore its legislative mandate and its previous decisions when exercising its discretion to direct that a representation vote be taken. Board Mem­bers representative of management should remind themselves that when the union has satisfied the Board that more than 55% of the employees are members of the trade union that such union is normally entitled" to certification, that a representation vote is a "residual mechanism" and that the Board will only exercise its discretion to order a representation vote "for compelling reasons and on the basis of cogent evidence". Advocacy in favour of representation votes regardless of the circumstances is in conflict with both the language of the Labour Relations Act and in the decisions of the Ontario Labour Relations Board. I believe it is not a Board member's role to alter the legis­lation to read what he or she would like it to, but to work within the framework of the legislation.