Ontario Labour Relations Board
[1990] OLRB Rep. February 121
File and Parties
0565-89-R; 0891-89-U United Steelworkers of America, Applicant v. Blue Bell Canada Incorporated, Respondent v. Group of Employees, Objectors; United Steelworkers of America, Complainant v. Blue Bell Canada Incorporated, Respondent
Before
BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.
Appearances
APPEARANCES: P. Turtle and R. Lemoine for the applicant; George Rontiris, Carole Piette and Bob Tremblay for the respondent; Geoffrey A. Howard for the objectors.
Decision of the Board
DECISION OF THE BOARD; February 21, 1990
The name of the respondent is amended to read: "Blue Bell Canada Incorporated".
File No. 0565-89-R is an application for certification in which representatives of the parties met with a Board Officer prior to the hearing and reached agreement on all matters relevant to the application with the exception of the issues described below.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in the Town of Renfrew, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, mechanics, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
In support of its application for certification, the applicant (also referred to in this decision as the "Union" and the "U.S.W.A.") filed documentary evidence of membership in the form of cards, which each consist of a combination application for membership and an attached receipt. The Union filed 101 such cards, 96 of which coincide with the names of employees who are undisputedly included in the bargaining unit for purposes of the count. It is common ground among the parties that 152 of the 153 persons whose names appear on the list filed by the respondent (as amended at the aforementioned meeting with a Board Officer) are properly included on that list for purposes of the count. However, there is a dispute among the parties regarding the status of Winnifred Pasco, who is the other person named on the list. It is the Union's position that Ms. Pasco was not an employee at the time of the application because she exercised managerial functions. The respondent (also referred to in this decision as the "Company") and the objectors contend that she has never exercised managerial functions, and that she should be included in the bargaining unit. Regardless of whether Ms. Pasco is included or excluded, it is clear 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 June 12, 1989, the terminal date fixed for this application and the date which the Board has determined, 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 Act.
That level of membership support would generally place the Union in a position to obtain a certificate without a representation vote. However, the objectors have filed with the Board a five-page statement of desire (referred to in this decision as the "petition") containing a total of 85 signatures, including the signatures of 38 persons who earlier signed membership cards. Thus, the petition is of potential relevance to the exercise of the Board's discretion under section 7(2) because if it is found to be voluntary, it would raise sufficient doubt concerning the continued support for certification of the applicant by enough employees who also signed membership cards that the Board would exercise its discretion under section 7(2) to direct that a representation vote be taken despite the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the applicant at the relevant time. In addition to its documentary evidence of membership, the Union also filed with the Board counter-petitions revoking support for any petition and re-affirming support for certification of the Union. However, since only 10 of the counter-petitions' 48 signatories also signed the petition, it is unnecessary for the Board to determine the validity of the counter-petitions as they are numerically irrelevant to the disposition of this application.
File No. 0891-89-U is a complaint under section 89 of the Act. After hearing and recessing to consider the submissions of counsel with respect to whether that complaint should be heard together with the Union's certification application, the Board made the following oral ruling on July 13, 1989:
Having regard to all of the circumstances and the submissions of counsel, we have decided to proceed to hear the evidence of the parties concerning the voluntariness of the petition.... If after the certification application has been decided by the Board it remains necessary for the section 89 complaint to be adjudicated, it will be heard by this panel and, as agreed by counsel, the evidence which we have heard in the certification application will be applied to the section 89 complaint.
During the nine days that were devoted to hearing evidence and argument regarding the petition, nine persons were called as witnesses. In addition to their testimony and the documentary evidence described above, the Board has before it seven exhibits which were entered during the course of these proceedings. In making the findings and reaching the conclusions set forth in this decision, the Board has carefully considered all of that oral and documentary evidences the submissions of counsel, and such factors as the firmness of the witnesses' respective memories, their ability to resist the influence of self-interest to modify their recollections, the consistency of their evidence, and their demeanour. We have also assessed what is most probable in the circumstances of the case, and considered what inferences may reasonably be drawn from the totality of the evidence.
The petition was circulated by Winnifred Pasco, Bonnie Beach, Shirley Beach, and Heather Beach (who, for ease of exposition, will be referred to as the "petitioners"). This was the second petition circulated by those four persons during the spring of 1989 in response to attempts to unionize the Company's plant in Renfrew, at which it manufactures denim and corduroy garments. In late April and early May they circulated a petition (the "previous petition") in response to an application for certification filed by the Amalgamated Clothing and Textile Workers Union (the "A.C.T.W.U.").
Ms. Pasco, whose brother is the respondent's Shipping Room Manager, has worked for the Company for over twenty-five years. Only one other person in the respondent's work force has more years of service with the Company. Ms. Pasco served as an acting supervisor from April 3 to April 28, 1989, during the absence of Linda Norlock, a member of management who supervises a number of the respondent's sewing machine operators. Ms. Pasco also served as an acting supervisor from February 6 to 10 and March 27 to 31, 1989, and from April 6 to August 21, 1987. Many other employees have also served as acting supervisors from time to time, but none of them has done so as often as Ms. Pasco. Moreover, although the evidence falls short of establishing that Ms. Pasco regularly exercised managerial functions while serving as an acting supervisor, it does indicate that she interviewed some employment applicants and, at the request of Vera Drefke, the respondent's Sewing Room Manager, telephoned at least one of them to notify her that she had been hired. The evidence further indicates that, unlike other workers who have served as acting supervisors, Ms. Pasco has had some involvement in disciplinary matters. While Ms. Norlock was away, Ms. Pasco was responsible for bringing to the attention of certain employees disciplinary notations prepared by Ms. Norlock. When an employee angrily refused to follow Ms. Pasco's instructions about fixing rejects and stated that she was going home, Ms. Pasco told her that if she left she would not be permitted to come back. After uttering some obscenities at Ms. Pasco, the employee left the plant. It is unclear whether that individual ever attempted to return to work. However, it is clear that at least some employees perceived Ms. Pasco as having discharged her.
While serving as an acting supervisor, Ms. Pasco had frequent contact with Bob Tremblay, the Company's Division Manager who runs the Company's Renfrew plant. Mr. Tremblay told the Board that during the period in the spring of 1989 when she was acting supervisor, Ms. Pasco spoke with him three to five times a day. She also accompanied him and the Company's supervisors on their daily walks through the plant. Although Ms. Pasco told the Board that she did not recall doing so, we accept the testimony of Joan McNulty that while Ms. Pasco was an acting supervisor during the spring of 1989, she told Ms. McNulty in the presence of three other employees that unionization of the plant would result in a loss of benefits. We also accept Ms. McNulty's evidence that Ms. Pasco subsequently told her that if a union came in, the Company would padlock the premises and move the machines to a plant in Dallas.
The previous petition contained a total of 69 signatures. In dealing with the A.C.T.W.U.'s application for certification, the Board was not called upon to determine the voluntariness of that document as the A.C.T.W.U. agreed to the taking of a representation vote. (See Blue Bell Canada Incorporated, [1989] OLRB Rep. May 412, at paragraph 7.) When the vote was conducted on May 26, 1989, 39 ballots were cast in favour of the A.C.T.W.U. and 109 were cast against it.
On the day of that vote, the petitioners met with Mr. Tremblay immediately after work at his request. At the time of that meeting, Mr. Tremblay, the petitioners, and virtually everyone else who worked for the Company knew that the U.S.W.A. had been conducting an organizing campaign and was "waiting in the wings" to apply for certification. (Indeed, the evidence indicates that a number of employees who signed A.C.T.W.U. cards before becoming supporters of the U.S.W.A. signed the previous petition at the suggestion of a U.S.W.A. organizer, in order to trigger a representation vote in the A.C.T.W.U. certification application.) In explaining to the Board why he called that meeting, Mr. Tremblay said: "Even though we'd had a fairly positive vote ... we were still trying to grasp the mood on the floor and figure out what we could do to improve it.... Since the petitioners had come into contact with so many people, I felt that they could give me some insight that we already didn't have into what the concerns were on the floor." That meeting lasted for about an hour or an hour and a half, during which the petitioners detailed workers' concerns about unfair and unequal treatment.
The U.S.W.A. filed the instant application on May 30, 1989. Notice of the application was sent to the respondent on June 2, 1989, along with the other materials normally provided by the Board to respondents in certification applications. The respondent posted the Board's Form 6 Notice to Employees of Application for Certification and of Hearing (the "green sheet") on Tuesday June 6 at 9:00 a.m. On Monday June 5, the petitioners were paged over the plant's public address system. When they answered the page they were advised that Mike Silver wished to meet with them. Mr. Silver is one of the owners of Western Glove Works, which acquired the Company in October of 1988 from its previous owner, Vanity Fair. Mr. Silver attended at the plant in August of 1988 to announce his firm's intention to purchase the Company. He also visited the plant on a few other occasions, but his presence was relatively rare. The meeting on June 5 lasted for about fifteen or twenty minutes. During that meeting Mr. Silver asked the petitioners if employee morale had improved. It is unclear what else was discussed at that meeting as the petitioners' evidence about it was quite vague and Mr. Silver was not called as a witness.
Although no mention was made of Mr. Silver when the petitioners were paged, some employees may well have surmised that the petitioners were being paged to meet with him. In her testimony, Bonnie Beach stated that she and the other petitioners were requested over the public address system to report to personnel or the test room. She then went on to describe the situation as follows: "Basically Mike Silver was on the floor that afternoon and when we disappeared, he disappeared off the floor. When we came back he did another walk through. It may be that people surmised that we were in a meeting with Mike Silver...." In any event, it may reasonably be inferred that if employees were not initially aware of that meeting, most if not all of them had become aware of it by the time the petitioners began circulating their petition in respect of this application.
Jane Latendresse, who was one of the four witnesses called by the Union in these proceedings, described in the following words what happened after that meeting: "Bonnie was working on my line at that time. She came out from the meeting and sat down at [her sewing machine]. She looked like she was pretty worked up - upset. She was talking to Rita Donahue. Then I was called down where she was sitting and she said, 'You're not going to believe what Mike Silver just told us!' I said, 'What?' She said, 'He told us that he was going to shut the doors if the union comes in.' I said, 'Well I don't believe you.' Then she said, 'I wouldn't lie about something like that. Go ahead and ask him for yourself."'
Bonnie Beach's version of that conversation is somewhat different. She told the Board:
"I believe [Jane Latendresse] came up and asked me where we had gone. I said we had a meeting with Mike Silver. Then I said that rumour has it that Mike Silver was supposed to have said that the plant was closing.... She said, 'I don't believe it.' I said, 'Well ask Mike Silver."'
It is unnecessary for purposes of this decision to decide which of those two versions is the most accurate. It is clear from the totality of the evidence that, whether intentionally or unintentionally, Ms. Beach left Ms. Latendresse with the impression that Mr. Silver had indicated that the plant would be closed if it became unionized. Following that conversation, Ms. Latendresse attempted to speak with Mr. Silver but was unable to do so as he had already left the plant. When she spoke with Mr. Tremblay the next day to ask him if it was true that the plant would be closed if the union came in, his response did not allay her concerns. He simply told her that "the bottom line was profit", and that the door would be shut if the Company did not make a profit.
Several of the witnesses who testified in these proceedings commented on how quickly and pervasively information and rumours generally spread throughout the plant. For example, Shirley Beach noted that "talk really spreads fast in a factory", and Ms. Pasco told the Board that "with the size of the plant, when one [person] knows something, everbody seems to know the same thing". Having regard to all of the evidence, we are satisfied that Ms. Latendresse's understanding of what Mr. Silver had said to the petitioners quickly became common knowledge among employees, as did Ms. Pasco's statement, which was echoed by at least one of the other petitioners, that unionization of the plant would result in a loss of benefits. We are also satisfied on the totality of the evidence that at least some of the respondent's employees concluded that the petitioners met with Mr. Silver on the day before the green sheet was posted in order to discuss circulation of a petition. In this regard, it is unnecessary to determine whether or not that matter was in fact discussed at that meeting, just as it is unnecessary to determine whether or not Mr. Silver actually stated that he would close the plant if the union came in.
The legal basis and effect of petitions was described by the Board as follows in Brian Chevrolet Oldsmobile Ltd., [1989] OLRB Rep. Apr. 324:
The 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).
This 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 its 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.
Neither 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.
The 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.
The 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.
Reference may also usefully be made to Morgan Adhesives of Canada Limited, [1975] OLRB Rep. Nov. 813, in which the Board wrote:
There is a natural suspicion which attaches to a statement of desire following closely upon a union organization campaign. The Board must assure itself that the "change of heart" indicated by employees who sign the petition in opposition to the union after having indicated support for that same union, is a free choice unimpeded by overt or subtle pressures. The rationale giving rise to this suspicion is well summarized in the Pigott Motors (1961) Ltd. case, 63 CLLC 16, para. 16,264 where the Board stated:
"...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." (emphasis added).
As noted in Peacock Lumber Limited, [1979] OLRB Rep. May 423, at paragraph 8, in view of the sensitive nature of the employment 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 also Lo Food Division of Lumsden Brothers Limited, [1983] OLRB Rep. May 676; Schenker of Canada Limited, [1982] OLRB Rep. June 937; Catfish Calhoun Inc., [1981] OLRB Rep. Nov. 1551; Westgate Nursing Home Inc., [1981] OLRB Rep. June 810; Fibre Therm Corp., [1980] OLRB Rep. Aug. 1196; and Dad's Cookies Ltd.,[1976] OLRB Rep. Sept. 545.
In the instant case, the petitioners prepared and circulated their petition with the benefit of legal advice. All of the signatures were obtained at employees' homes and other locations away from the plant. Notes were made of the locations at which the employees signed the petition, and of the specific petitioners who witnessed their signatures. However, although we find the petitioners' evidence concerning the origination and circulation of the petition to be fairly reliable, we are not satisfied on the balance of probabilities that in the circumstances of this case the petition represents a voluntary statement of desire on the part of those who signed it. In reaching this conclusion we have taken into account all of the material facts, including the fact that the petitioners met with one of the owners on the afternoon before the green sheet was posted, after which employees came to believe that he had indicated that the plant would be closed if the union came in. Statements by the petitioners including Ms. Pasco, who was perceived by at least some employees to exercise managerial functions and to have a closer relationship with management than most other workers, also led employees to believe that unionization would lead to a loss of existing benefits. Under the circumstances, it is probable that at least some of the signatories to the petition signed it because they feared that the plant would be closed, or that some of their existing benefits would be lost, if the Union's certification application succeeded, or because they suspected that management would become aware through Ms. Pasco of a refusal on their part to sign the petition. In this regard we note that although some employees signed the petition in Ms. Pasco's absence, it is clear from the evidence that it was common knowledge in the plant that the four petitioners had circulated the previous petition, and were all involved in circulating the petition in respect of the U.S.W.A.'s application. Moreover, Ms. Pasco personally witnessed over forty of the signatures on the petition.
During argument, counsel for the Union advised the Board that, although her client is opposed as a matter of principle to the approach set forth in Robin Hood Multifoods, [1985] OLRB Rep. July 1159 (because the U.S.W.A. is of the view that it protracts collective bargaining and makes it more difficult for a union to achieve a first contract), in the circumstances of this case (in which at the time of the application Ms. Pasco had ceased to be an acting supervisor and had returned to her job as a sewing machine operator) the Union was prepared to accept the issuance of a final certificate and to make an application under section 106(2) of the Act if it subsequently became necessary to do so.
As indicated above, the Board is satisfied on the basis of all the evidence before it that, irrespective of the status of Ms. Pasco, 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 June 12, 1989, the terminal date fixed for this application and the date which the Board has determined under section 103(2)(j), to be the time for the purpose of ascertaining membership evidence under section 7(1) of the Act.
Since there are no circumstances present in this case which would warrant the exercise of the Board's discretion under section 7(2) of the Act to direct that a representation vote be taken, a certificate will issue to the applicant for the bargaining unit described in paragraph 4 of this decision.
The complaint in File No. 0891-89-U is hereby adjourned sine die for a period not exceeding one year. Unless within that time the complainant or the respondent requests that the Board proceed with the matter, it will be terminated. If such a request is made, the complaint will be scheduled for hearing before this panel of the Board.