[1990] OLRB Rep. March 291
2121-89-R A Group of Employees Employed by Kitchener Beverages Limited, Applicant v. United Food and Commercial Workers International Union, Respondent v. Kitchener Beverages Limited, Intervener
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. A. Correll and K. Davies.
APPEARANCES: Rae Sands, Dan Dychuk, Blair O'Dell, Michael Fielding and Robin Damjanovic for the applicant; Elliott G. Posen, Roger Waite and Fred O'Toole for the respondent; R. A. Werry for the intervener.
DECISION OF THE BOARD; March 9, 1990
The name of the respondent is amended to read: "United Food and Commercial Workers International Union".
This is an application for termination of bargaining rights under section 57.
Four bargaining unit employees who circulated a petition in support of termination of bargaining rights of the respondent union gave evidence. The union called no evidence. The first witness was Danny Dychuk whose job involves helping drivers to deliver soda. He has no supervisory or managerial duties. His wife typed up the petition forms at her office according to wording he obtained from an employee who had circulated a petition in opposition to the union a few years ago. He obtained seventeen of the signatures on the petition in one to one conversations with the employees. He explained to each of the people who asked that if they signed the petition it did not mean that the union was in or out; the Labour Relations Board would review the matter and if there were enough names, they would get a vote to see whether the union was in or out. Some just read and signed because they already knew what it was about. He kept the forms in his house when he did not have them on his person at the workplace. He worked with three other employees to whom he gave copies of the blank petition forms. He had no assistance from any owners or managers or any advice from them. There is nothing about the circumstances in which he obtained signatures which is of any concern as to the voluntariness of the petition.
James Blair O'Dell is a quality control officer who assisted Mr. Dychuk in the wording of the petition and its circulation. As part of his job duties, he has the right to speak to employees who are not doing their work up to quality control standards. He was acting as lead hand prior to his promotion to that position in the middle of October, after which he has received fifty cents more an hour. He has told employees "to shape up", but has never been involved in the administration of discipline, although he "could report things" to the Plant Manager. Mr. O'Dell circulated a portion of the petition, sometimes keeping it in his desk in the quality control lab between November 3 and 14, 1989. The plant Manager has keys to the lab in which Mr. O'Dell's desk is located. Mr. O'Dell collected eight signatures under circumstances which do not raise concerns about voluntariness except to the extent indicated below.
The third person who assisted in the circulation of the petition was the shipper-receiver, Michael Fielding. He is responsible for seeing that the loads are built for the trucks and hands the assignments for the loads out to the people in the Shipping Department. If something is wrong with the loads which he checks he approaches his boss who may speak to that person to inform them how to do it correctly. He also reports on punctuality. When he was approached to sign the termination petition, he offered to become involved. He was then asked to "take care" of the part-time employees with regards to the petition. He was present for eight signatures in circumstances that do not raise concerns about voluntariness except as discussed below.
Robin Damjanovic is the night shipper. He checks off stock which is loaded onto the trucks to make sure the content is correct. He "keeps an eye on" part-time students who sort empty bottles and clean up. He can only instruct employees; he cannot do anything more if they do not do the work correctly. He makes reports on employees but it is the supervisor who records the problems. He, too, offered to help Dan Dychuk after he was approached to sign the petition. He witnessed thirteen signatures in circumstances which are not of concern concerning voluntariness except as discussed below.
There were some contradictions in the evidence of the four men who circulated the petition. Mr. O'Dell said that he did not give Mr. Dychuk any money to pay their lawyer, while Mr. Dychuk said that both he and Mr. Damjanovic gave him money although he had asked neither. Also, Mr. Dychuk testified that Mr. Fielding signed the petition in the parking lot, whereas Mr. Fielding said it was in a tavern in front of an unidentified third person. There was also some ambiguity about the location of the parking lot in which Mr. Dychuk says he obtained most of the signatures.
The union asks that the petition be disregarded because it says Mr. Dychuk's evidence should be disregarded as it is not worthwhile and truthful. He suggests that Mr.Dychuk mislead the Board in his evidence concerning Mr. Fielding's signature. Counsel queried how many other signatures were not gotten where Mr. Dychuk said they were. Secondly, he says his evidence was misleading about the location of the parking lot. Thirdly, Mr. Posen points to Mr. Dychuk's evidence concerning the arrangement for payment of he lawyer's bill - that he never asked anyone. Mr. Fielding, however, says that Mr. Dychuk asked him for money. Counsel submits that if he was not truthful in those areas then the rest of his evidence should not be allowed to stand.
As to Messrs. Fielding, Damjanovic and O'Dell, Mr. Posen submits that while appearing to be in the bargaining unit, they are so near management that their involvement in the circulation of the petition would tend to prejudice the application. They do daily reporting on quality and attendance and they are consulted about disciplinary action. He suggests that any of the cards signed by those three should be disregarded.
The company submitted that there was no suggestion that it was involved and that this is a matter between the employees and the union. However, counsel disputes the characterization of the three employees as near management. The company is involved in negotiations for a renewal of the collective agreement and feels that meaningful negotiations require the support of the employees. A vote would establish the employees' wishes in this regard.
On behalf of the applicant, counsel submitted that the application should be allowed as the petition bears signatures of a majority of the bargaining unit. She argues there was no employer influence nor evidence that the care and control of the petition left any of the circulators. Although the Plant Manager had potential access to Mr. O'Dell's desk, there was no evidence that he had any occasion to go in.
The question to be determined is whether the Board has reasonable assurance that the petition represents the voluntary wishes of the employees who signed. This case poses some difficulty because of the positions held by three out of the four circulators. While the evidence of the manner in which the four employees circulated the petition does not show any actual employer involvement or perception of employer involvement, the fact that three out of the four circulators held positions closer to management than other employees is of significant concern. This is because of the danger that employees, knowing that these employees report to management on various matters ranging from the quality of their work to attendance and punctuality, would sign out of fear that they would also report whether they had signed the petition or not.
The Board has encountered similar situations in the past. For instance, in Tip Top Tailors, [1981] OLRB Rep. April 492, the Board said as follows, after concluding that the circulator of a petition was a lead hand:
This conclusion raises two competing considerations. On the one hand, Mr. Mazzei [the leadhand] is an employee in the bargaining unit, and prima facie entitled to exercise the rights granted to employees under The Labour Relations Act. On the other hand, pro-management activity by an employee enjoying special status, in the absence of other circumstances, can easily be misconstrued by employees as representing the acts of management itself, and the Board must be sensitive to the effect which such activities can have, intentionally or otherwise, on the voluntariness of other employees' acts. The Board grappled with this perplexing problem in the recent A. N. Shaw & Sons (Eastern) Ltd., case, [1980] OLRB Rep. Oct. 1347, and articulated its approach in the following terms:
In assessing the voluntariness of the statement of desire, we are unable to accept the proposition that Mr. Foley stands in the same position as any other employee in the bargaining unit. Because of his supervisory functions, Mr. Foley's active involvement with the statement of desire raises concerns which would not exist if he were other than a working foreman. However, we also do not believe that his involvement with the statement of desire must invariably result in a finding that it cannot be given any weight. Rather, what is required is an examination of all of the surrounding circumstances and an assessment of whether other employees would likely have viewed Mr. Foley as acting on behalf of, or with the support of management, or whether they would likely have perceived him as a bargaining unit employee seeking only to further his own self-interests.
The Board has also pointed out that it will not be over-protective, or lightly deprive a bargaining unit employee (albeit with a position closer to management than others) of the right to participate in the processes under the Act respecting union representation. See Grove Park Lodge, [1980] OLRB Rep. Feb. 235 and Irwin Toy, [1983] OLRB Rep. April 536, among others.
In examining all the surrounding circumstances on a termination application the Board is less inclined to draw inferences adverse to the voluntariness of a petition than it is on a certification application. There is not the immediacy of the change of heart of those who shortly before had signed union cards to inevitably raise questions concerning the reason for the sudden change. However, the considerations are essentially the same, aimed at protecting the right of employees to make their own choice, rather than their perceived need, out of fear, to side with the choice the employer would make. See among others, Imperial Clevite Canada Inc., [1987] OLRB Rep. March 375 and Irwin Toy Limited, supra, and the cases cited therein.
On the facts of this case, there is no evidence of circumstances in this workplace which would call for more than the usual amount of caution. Specifically, we have no evidence that would indicate perception in this case that signing the petition would have become known to management. Nor do we have evidence of inappropriate "salesmanship" based on closeness to management, such as in Imperial Clevite, supra, or of close personal relationships with members of management such as in Johnson Matthey Limited, [1987] OLRB Rep. April 518. The evidence of the manager's access to the quality control lab where part of the petition was for part of the time is of some concern. However, there was no evidence, despite the opportunity to present it, of the kind of use of such access or publicity about the location of the petition which would base an inference of involuntariness merely on the possibility that the manager could have had access. Given the lack of evidence of additional circumstances to raise particular concerns in this workplace, we are not prepared to infer a lack of voluntariness from the job classifications alone of the three circulators other than Mr. Dychuk.
In regards to the inconsistencies in the evidence of the circulators, we are not of the view that they are such as to discredit the evidence which otherwise accounts for all the signatures on the petition in circumstances that do not raise a concern that they were not voluntary. Although Mr. Dychuk was not very forthcoming about the arrangements for paying his lawyer, it an area in which natural reticence about arrangements which are usually private plays a part. None of the evidence came near establishing that the employer had any role in the selection or payment of the lawyer, or that employees would have thought that to be the case.
We consider the confusion about the location of the parking lot, whether alongside the plant or nearby, to be insufficient to call into question the bulk of the evidence. Similarly, in the absence of any "suspicious" circumstances, the fact that Mr. Dychuk was apparently mistaken about where Mr. Fielding signed the petition is not of such significance as to warrant a conclusion that Mr. Dychuk's evidence was untruthful in the main. Particularly because Mr. Fielding was assisting in circulating the petition, which warrants an inference that he had more than one contact with Mr. Dychuk throughout this period, the Board does not find this lapse particularly important.
On balance, although the matter is not free from doubt, we are of the view that we have sufficient assurance of the voluntariness of the petition to warrant relying on it to put the matter to a vote.
The application is timely. We find that not less than forty-five percent of the employees in the agreed bargaining unit:
all employees of Kitchener Beverage Limited, in the City of Kitchener, Ontario, save and except supervisors, persons above the rank of supervisor, office and clerical staff and students employed during the school vacation period
at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent trade union on December 12, 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 the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union under section 57(3) of the said Act.
The Board directs that a representation vote be taken of the employees of the respondent employed in the bargaining unit described above. All those employed in that bargaining unit on the date of this decision who are so employed on the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Kitchener Beverage Limited.
The matter is referred to the Registrar.