United Brotherhood of Carpenters and Joiners of America, Local Union 27 v. Racal-Chubb Canada Inc.
[1990] OLRB Rep. September 944
1635-89-R United Brotherhood of Carpenters and Joiners of America, Local Union 27, Applicant v. Racal-Chubb Canada Inc., Respondent v. Group of Employees, Objectors
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Rundle and C. McDonald.
APPEARANCES: J. D. Watson and Allan Wall for the applicant/complainant; Robert Routliffe and Terry S. Ryce for the respondent; Michael Horan and C. Jennings for the objectors.
DECISION OF THE BOARD; September 7, 1990
Reasons for Decision
1Further to the panel's decision dated May 2, 1990 the parties reconvened before us to deal with the issue of whether the statement of desire (the "petition") filed in connection with the certification application in File No. 1635-89-R represented a voluntary statement of employee wishes. Having heard the evidence and submissions of the parties, we ruled that we were not satisfied that the document was a voluntary statement of employee wishes and therefore would not cast doubt on the membership evidence filed by the applicant. In a decision dated June 29, 1990 we issued a certificate to the applicant. We have been asked to provide our reasons with respect to the ruling on the statement of desire.
2The approach the Board takes to its inquiry into the voluntariness of any statement of desire filed in opposition to an application for certification was described in Chatham Concrete Forming, [1986] OLRB Rep. Apr. 426 (and the cases cited therein) as follows:
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 the virtues of trade union representation (see Rule 73(2)), 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, and to protect employees from possible employer reprisals the anonymity of the union supporters is preserved. That is the way it has been for more than thirty years, ... Representation votes are a residual mechanism resorted to where the union cannot demonstrate a "clear majority" (i.e., more than fifty-five per cent) 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 purported change of heart by employees who have previously signed union membership cards.
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. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the petition document? While an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. And lest it be thought that the identification of union supporters and opponents is neutral information, one must remember that the Legislature does not regard it that way. Section 111 of the Act is designed to preserve the secrecy of the employees' choice. The Legislature has recognized the employees' concerns and sensitivities.
Frequently, as in the present case, anti-union petitions are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be perceived to be acting on its behalf. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. 5imilarly, an employee may be motivated to sign because of conduct which suggests that continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case can one regard his signing the petition as being truly voluntary -although, of course, the mere identity of interest between the employer and the objecting employees is obviously not sufficient in itself to link the petition with management in the minds of reasonable employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits. On the other hand, in the Board's experience there are enough instances where employers have committed unfair labour practices, or have sponsored or supported anti-union petitions that these employee fears cannot be discounted as being patently unreasonable. Again, that is why the Act preserves the secrecy of union membership.
It is for this reason that the Board undertakes the inquiry contemplated by Rule 73(5) of the Rules of Practice, in order to satisfy itself from the circumstances of the origination, preparation, and circulation of the petition, that the document truly represents the voluntary wishes of those who signed it.
3Also, in Picker International Canada Inc., unreported decision, Dec. 19, 1988 (and the cases cited therein), the Board explained:
- When assessing whether a petition represents a voluntary expression of the wishes of those employees who signed it, the Board has regard to the overall environment in the workplace and recognizes the responsive nature of the employer-employee relationship. The Board will not give any weight to a petition where management has been involved in the origination or circulation of the documents. If the objecting employees are not the beneficiaries of employer support, 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 typical employees to conclude that management was involved with the petition or might become aware of who signed or did not [sic] the document. From the Board's perspective, the impact on employee wishes is the same when management is directly involved or when employees simply perceive that management is involved. The onus is on the objecting employees to prove on the balance of probabilities that the petition represents a voluntary expression of the employees' wishes.
4As was agreed at the outset of the hearings, the panel took into account in its determination the evidence that it received with respect to the issue of whether Mr. Moore and Ms. Jennings, employed as dispatchers, exercise managerial functions. The panel determined that these two individuals did not in fact exercise managerial functions so as to exclude them from the bargaining unit pursuant to section 1(3)(b) of the Labour Relations Act.
5Ms. Jennings was responsible for the origination and preparation of the petition. She was also involved in its circulation. We do not intend to review all of the evidence we heard with respect to the duties and responsibilities of both Ms. Jennings and Mr. Moore and the evidence regarding the actual origination, preparation and circulation of the document. The panel's finding that we would not place any weight on the document filed as we were not satisfied that it represented a voluntary expression of employee wishes, is based on our view that a reasonable employee would at the very least, perceive management's involvement in this petition raising concerns that management might become aware of who signed or did not sign it.
6A number of circumstances, taken together, lead to this conclusion. Although the evidence did not establish that Ms. Jennings exercised actual managerial authority, it is clear, and was conceded by all, that she acts as a conduit to management. In addition, some of her duties would in our view, lead a reasonable employee to conclude that her duties were more closely aligned with management. For example, Ms. Jennings maintains a log book wherein she records recalls that are made to customers in circumstances where the work was either not completed or there was a complaint. The employees were advised that she would be keeping such a record in the summer of 1989. This notice was placed by Ms. Jennings on the bulletin board in her office. Mr. Federico, a managerial employee, reviews these entries and initials them. Mr. Ryce, the Branch Manager, also has access to this book. As a result of these notations further investigation may be initiated and the potential for consequences to employees (both disciplinary & congratulatory) exists.
7Certain notations in the log are of particular concern with respect to the issue of the voluntariness of the petition. A page of notes marked as Exhibit 11 and dated October 6, 1989 (the day the Notice to Employees was posted) discloses the identity of certain employees who signed the petition. In describing a conversation in the plant among employees and Mr. Ryce, Ms. Jennings informed them that she'd quit if a union were certified. The notes indicate this but the words "and would find a way" are scratched out. On their face these notations are not determinative, but the explanations provided by Ms. Jennings in her evidence were vague and unresponsive. Although she testified that she did not speak to management regarding the petition, the fact that she kept these notes in a document readily accessible to management supports the applicant's contention that the employees would reasonably believe that Ms. Jennings was aligned with management and would reasonably perceive the involvement of management in the petition.
8Although we were not satisfied that Ms. Jennings had involvement in actual management decision-making and made no effective recommendations with respect to employees' work or performance, we are satisfied that she discussed these matters with Mr. Federico and that Mr. Federico sought her input in decisions. It is also fair to say that the employees understood Ms. Jennings to have had such input. Ms. Jennings often made reference to the term "we", both to employees and before the panel, when discussing changes in the workplace involving decisions of Mr. Federico. We refer to the incidents involving Mr. Roth's return to the road, Mr. Martin's receiving his van, and bringing Mr. Roberge back into the shop.
9Ms. Jennings also had a closer relationship with Mr. Federico than other employees. Prior to his employment with the respondent, she had been employed by him. It was through Mr. Federico that Ms. Jennings became aware of the opening for a dispatcher with the respondent in early June 1989. Throughout the period of time that the petition was being circulated Mr. Federico and Ms. Jennings travelled to work together while her vehicle was temporarily out of service. This was known to the employees.
10It was conceded by the respondent that Mr. Moore and Ms. Jennings performed essentially the same job. Mr. Moore, an employee of some 44 years had been a member of management and we were satisfied that he continued to hold himself out to employees as such. By virtue of the recent company reorganization in the spring of 1989 those responsibilities which fall within the exercise of managerial function pursuant to section 1(3)(b) were in fact removed from Mr. Moore. This may not have been clear to the employees however and again is consistent with the view that Ms. Jennings was perceived to be acting on management's behalf.
11By virtue of an informal meeting of employees late in the day on October 6, 1989, a number of them were aware that a petition was being prepared by Ms. Jennings. It was acknowledged by both Ms. Jennings and Mr. Bishop, the other individual involved in circulating the petition, that it was common knowledge in the plant that the petition was being kept in Ms. Jenning's purse in her office. At least two employees approached her there to sign it. Mr. Federico is regularly in Ms. Jenning's office and has access to it, for example, to review the log book, in her absence.
12There were inconsistencies in the evidence between Mr. Bishop and Ms. Jennings and discrepancies between the evidence and the documents which, taken as part of the whole, caused us concern. One relates to the origination of the document and the timing of phone conversations with Ms. Jenning's father, whom she testified proposed the idea of the petition and helped her with the wording. A second is with respect to the circulation and custody of the document whereby Mr. Bishop testified he took it home with him one evening yet this was not apparent from Ms. Jenning's evidence. A third is with respect to the location where certain signatures were obtained.
13Overall, we were not satisfied that the document represented a voluntary expression of employee wishes, but rather that individuals signing it may well have done so in the belief that the fact of their signing or not signing the document might well come to the attention of management. Consequently it did not place doubt on the membership evidence filed by the applicant. A certificate therefore issued to the applicant.