Ontario Labour Relations Board
[1990] OLRB Rep. September 917
3171-89-R Christopher Clayton and Giuseppe Tocci, Applicants v. United Steelworkers of America, Respondent v. Benoma Metal Products Limited, Intervener
BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. G. Wozniak and E. G. Theobald.
DECISION OF VICE-CHAIR KEN PETRYSHEN AND BOARD MEMBER E. G. THEOBALD; September 19, 1990
1This is an application under section 57 of the Labour Relations Act in which the applicants, C. Clayton and G. Tocci, seek to terminate the bargaining rights held by the United Steelworkers of America.
2The 2nd paragraph in a decision dated August 3, 1990 reads as follows:
- At the conclusion of the hearing on August 1, 1990, the Board advised the parties that it would reserve its decision. After considering the evidence and the parties' submissions, the Board, with D. Wozniak dissenting, finds that it cannot be satisfied that the first set of petition documents filed in support of the application represent a voluntary expression of employee wishes. Since the majority's conclusion is based on Mr. Clayton's role in the securing of signatures on petition documents and the reasonable perception of employees, the same conclusion would apply to the second set of petition documents filed by the applicants prior to the terminal date given the similar role played by Mr. Clayton in securing the signatures on those documents. Accordingly, this application is dismissed. The reasons for this decision will follow in due course.
The Board's reasons for the above finding are as follows.
3For purposes of entertaining the evidence and representations from the parties, the Board held five days of hearing. C. Clayton, G. Tocci and A. Ayala were called to give evidence in support of the application. The respondent called L. Gans, S. Gill, H. Sidhu and J. Perguin to give evidence. O. Rintomaki was called to testify by counsel for the intervener. In making its factual determinations, the Board carefully reviewed all of the evidence and the parties' representations thereto.
4The applicants filed two sets of petitions with the Board in connection with the application. The second set of petitions was obtained and filed with the Board when the applicants discovered the respondent was attempting to secure signatures on a counterpetition. As it turned out, the counterpetition filed by the respondent was not numerically relevant. At the outset of the proceeding, the Board determined, after entertaining representations from the parties, that it would firstly entertain the evidence and representations of the parties concerning the voluntariness of the first set of petitions filed with the Board and would later determine if it was necessary to hear evidence and representations concerning the voluntariness of the second set of petitions.
5Clayton was the person who initially decided to make efforts to terminate the respondent's bargaining rights and he was able to obtain Mr. Tocci's assistance. The fact that Clayton assumed the role he did is not surprising since he represented the objecting employees when the respondent applied to be certified in 1987. The applicants filed with the application 31 petitions signed by employees expressing opposition to the respondent. Of the 31, Clayton witnessed 21 while Tocci witnessed the remaining 10. This initial set of petitions was secured between March 9 and March 20, 1990 and the Board heard a considerable amount of evidence concerning the manner in which the applicants obtained the signatures on the petitions. The respondent attacked the voluntariness of these petitions by pointing to Clayton's close connection with management and, in addition, the respondent attacked the petitions on other grounds which we find unnecessary to detail. As our decision of August 3, 1990 indicates the majority found merit in the respondent's position that Clayton's connection with management and how reasonable employees might perceive that connection should lead us to conclude that the signatures on the initial set of petitions were not placed there voluntarily. We note that we found no merit in the respondent's other positions concerning the manner in which the petitions were circulated and signatures obtained. With respect to the evidence of Mr. Gans concerning the events which occurred subsequent to the signing of the initial petitions, the Board finds in the circumstances that it is unnecessary to decide whether the evidence of those events would have had an impact on the voluntariness issue.
6Before setting out the facts, it is useful to review the Board's general approach when confronted with deciding whether signatures on petitions have been placed there voluntarily. There is an onus on the applicant in a termination application 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.
7Support for the preceding observations in a certification context can be found in Radio Shack, [1978] OLRB Rep. Nov. 1043, where the Board made the following comments at paragraph 24:
- The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed 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 represent 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.)
8The Board recognizes that there is a difference between petitions filed in a certification context and those filed in support of a termination application, such as we have before us. In Ontario Hospital Association Blue Cross, [1980] OLRB Rep. Dec. 1759, the Board stated the following at paragraph 31:
The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented in N. J. Spivak Limited, [1977] OLRB Rep. July 462:
In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 (now 57) of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49 (now 57), a section designed to give vent to employee desires, requires the passage of at least one year from the date of the union's certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certification of the same union, and having regard to the purpose of section 49 (now 57). the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 (now 57) of the Act.
9Although the Board is less inclined to draw negative inferences in a termination application where there is no "sudden change of heart" than it would be in a certification proceeding, the Board's task is still to "protect the fundamental rights of employees to make their own choice, as distinct from the choice of their employer, in the matter of selecting or rejecting a bargaining agent". Peel Block Co. Ltd., 63 CLLC ¶16,227. The Board must still be satisfied that when employees signed a petition in a termination context, they were not influenced by a concern that management would become aware of who signed the petition.
10As one might expect, the parties had different positions concerning what the Board should do with the evidence of Clayton's relationship to management. Counsel for the intervener filed the following three decisions of the Board which address the issue: Otto's Deli, [1980] OLRB Rep. Nov. 1673, Labatt's Ontario Breweries, [1985] OLRB Rep. March 433, and Domus Building Cleaning Co. Ltd., [1986] OLRB Rep. March 319. These cases indicate that a special relationship, whether it be familial or of some other variety, between a bargaining unit employee who is involved in the circulation of a petition and a member of management is a relevant factor when considering whether a petition represents a voluntary expression of employee wishes. The cases indicate as well that the weight to be attached to this factor depends on the facts in each case.
11Clayton, who has been employed by the intervener since 1983, is the brother-in-law of Brian Da Silva, the supervisor in the shipping department. In and of itself, such a relationship between these two might not raise a concern with respect to the voluntariness of the petitions. However, in addition to the relationship between Clayton and Da Silva, the evidence disclosed that Clayton works in the same department as Da Silva and is accordingly supervised by Da Silva. The uncontradicted testimony of S. Gill is that Clayton takes over Da Silva's duties when Da Silva is absent. As one might expect, Clayton and Da Silva have a close working relationship and Clayton is often during the course of the work day talking with Da Silva in Da Silva's office. In addition to these factors, Da Silva and Clayton live in the same household in Brampton. These items that are characteristic of the relationship between Clayton and Da Silva are well known to bargaining unit employees.
12Clayton testified that he and Da Silva never discussed his efforts to terminate the respondent's bargaining rights and his evidence in this regard is uncontradicted. The fact that Da Silva or any other person in management was not involved with or had any discussion with Clayton concerning his petition activity does not eliminate the concern. The factors referred to above suggest that reasonable employees who were asked to sign a petition by Clayton or who knew Clayton was involved in the termination effort would likely have a concern that management would become aware of those persons who did not sign a petition. In addition to those factors considered above, it was argued that one must take into account what occurred during the certification process and the fact that the respondent in this application was unable to secure a sufficient number of signatures on its counterpetition to make it relevant. The majority has considered these factors as well but still find that we could not be satisfied, given Clayton's relationship to management, the role he played in the termination application and the reasonable perception of bargaining unit employees, that the petitions represented the voluntary expression of the wishes of those employees who signed them. As noted in the decision of August 3, 1990, the same conclusion would apply to the second set of petitions given Clayton's role in securing those documents.
DECISION OF BOARD MEMBER D. G. WOZNIAK; September 19, 1990
I cannot agree with the decision of the majority in this matter.
My dissent is based on the evidence of Christopher Clayton whom the majority found had not satisfied them that the petitions filed with the application represented a voluntary expression of employee wishes. In my opinion, Clayton was a credible witness and very knowledgeable about the requirements of the Labour Relations Act, having been involved in representing a group of objecting employees when the Union was certified in 1987.
The majority felt that the fact that Clayton resided in the same residence as his brother-in-law Brian DaSilva, the supervisor of the Shipping Department, and that Clayton works in the same department and under the supervision of DaSilva and appears to have a "special relationship" with him such as taking over his duties when he was on vacation, etc. raised questions about the voluntariness of the petitions. The latter circumstances are understandable when it is realized that Clayton Worked in the department for 7 years and that it was an entry department for new employees; it is not surprising therefore that he would have a "special relationship". All of these circumstances were well known to all bargaining unit employees and there was no evidence offered by the Union that they influenced employees when Clayton solicited their signatures on not one but two petitions.
For these reasons, I would not find the petitions tainted and would have supported a decision directing a representation vote.