United Steelworkers of America v. Continuous Mining Systems Limited, 1990 CanLII 5791

[1990] OLRB Rep. April 404

0731-89-R; 0832-89-U United Steelworkers of America, Applicant v. Continuous Mining Systems Limited, Respondent v. Group of Employees, Objectors; United Steelworkers of America, Complainant v. Continuous Mining Systems Limited, Respondent

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.

APPEARANCES: Keith Oleksiuk and Wayne Fraser for the Applicant/Complainant; R. Little and Dale Lefts for the respondent; K. R. Valin and Richard Liscum for the group of employees.

DECISION OF THE BOARD; April 24, 1990

1. Although filed on June 16, 1989, the events giving rise to this certification of application appear to have started well before that date. In 1988, during the negotiations for the renewal of a collective agreement between Inco and Local 6500 of the United Steelworkers of America, the subject of the unionization of Continuous Mining Systems Ltd. ("CMS") came up. CMS is a wholly owned subsidiary of Inco. It was established in 1984 and is in the business of marketing, developing and designing mining equipment. When the subject was raised during the Inco negotia­tions, the employees at CMS were not represented by the United Steelworkers of America, ("the Steelworkers" or the "Union") or any other trade union. The Steelworkers wanted to change that. Inco, which has had a long collective bargaining relationship with the Steelworkers in respect of its own employees, indicated that whether or not the employees at CMS were represented by the Steelworkers was a choice which employees at CMS had to make. It was a right which manage­ment at Inco or CMS could not confer upon the Steelworkers.

2. As a result of discussions during the Inco negotiations the following letter from Dr. Walter Curlook, Chairman of the Board of CMS and Executive Vice-President of Inco, Mining Division, was sent to Leo Gerard, Director, District 6 of the Steelworkers on May 27, 1988:

We wish to advise that the management of CMS recognizes both the rights of its employees with respect to union representation and the right of the United Steelworkers of America to make all reasonable efforts to organize them.

On the understanding that the Company must act lawfully at all times, we are prepared to pro­vide your union with the names and addresses of our employees so that you may approach them for the purpose of joining the union in order to obtain certification from the Ontario Labour Relations Board. To the extent permitted by law, we are also prepared to provide a union rep­resentative with an opportunity to speak to employees at their place of work.

3. A list of names and addresses of the employees was provided to the Steelworkers in May 1988. In addition, Dr. Curlook's letter was distributed by CMS to all its employees at a monthly employee meeting and discussed at that time. A year later, after this application was filed, but prior to the terminal date, an updated list of names and addresses was again provided to the Steelworkers. The Steelworkers did not however contact CMS to arrange for a method by which it could avail itself of the "opportunity to speak to employees at their place of work". During the organizing campaign which culminated in this application union representatives did hand out leaflets to employees as they were entering and exiting the plant. There is however a dispute in the evidence tendered by the parties whether, at that time, the invitation to speak to employees was extended quite as warmly as in Dr. Curlook's letter or whether union representatives were told, on one occasion at least, to get off the company's property or the police would be called. It is unneces­sary to resolve that dispute. The evidence discloses that a number of representatives of the Steel­workers did attend on company premises on several occasions to hand out leaflets to employees without incident and without police attendance. The text of Dr. Curlook's letter was prominently referred to in the union's leafletting campaign.

4. Dr. Curlook's letter and the giving of a list of the names and addresses of employees to the Steelworkers form the basis of the assertion by the group of employees that the applicant should not be certified by reason of section 13 of the Labour Relations Act ("the Act") because the employer "has contributed ... other support" to the union. That is only one of the outstanding issues raised in this application. The others include the duties and responsibilities of Rick Poitras, whom the applicant claims exercises managerial functions within the meaning of section 1(3)(b) of the Act and cannot therefore be included in the bargaining unit found to be appropriate by the Board in its decision dated July 12, 1989; the voluntariness of a "petition" signed in opposition to this application; and certain allegations that the respondent has violated section 64, 66(a), 66(c) and 70 of the Act. In earlier decisions the Board has already dealt with the status of the trade union, the bargaining unit description, a non-pay allegation and the status of certain other individ­uals whom the union asserted exercise managerial functions.

The Section 13 Issue

5. The representative for the objecting employees argued that the fact that CMS provided a list of names, addresses and telephone numbers to the Steelworkers constitutes employer "sup­port" within the meaning of section 13 of the Act and that therefore the applicant cannot be cer­tified. Section 13 provides as follows:

6. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code, 1981 or the Canadian Charter of Rights and Freedoms.

7. In support of this submission, we were referred to Tri-Canada Inc., [1981] OLRB Rep. Oct. 1509. As noted in Tri-Canada Inc. there can be no dispute that a list of employees' names, addresses and telephone numbers can be of real assistance to an organizing union. It does not nec­essarily follow however that supplying that type of information constitutes "other support" within the meaning of section 13. Each case must be decided on its own facts and in keeping with the pur­pose and intent of section 13.

8. The following passage from Edwards v. Edwards (1952), 52 CLLC ¶17,027 is often cited in Board jurisprudence as authority for the rationale which underscores section 13 and the approach the Board should take in dealing with that section:

The section is clearly aimed at "company-dominated" trade unions which are not entitled to be certified, on the theory that a trade union fostered by an employer cannot be considered as hav­ing been freely chosen by employees. The section designates conduct by means of which an employer might seek to confine the broad right confined by section 3 and is therefore to be called into play where that purpose appears. We consider it is intended to be applied where employer activities are of such a character or are of such proportions that it is reasonable to infer that employees have not exercised a free choice in the matter of the selection of a bargaining agent, or where an employer has given material assistance to a trade union in connection with its organizational or other activities; where, in other words, the particular applicant is not truly the chosen bargaining agent of the employees concerned. It is argued that because of its explicit lan­guage, section [13] need only be literally construed and mechanically applied. We suggest that it can properly be interpreted only by reference to what is its obvious intent: to prohibit the certifi­cation of any trade union which, because of the nature of its relationship with an employer, is not qualified to act on behalf of employees in their relations with their employer.

[emphasis added]

8. This passage was quoted with approval in Ontario Hydro [1989] OLRB Rep. Feb. 185 where the Board then held;

The need to be cautious and purposive rather than literal in its interpretation and application of section 13 has been a regular theme in the Board's decisions. If it were otherwise, section 13 could be used by employers to accomplish the very thing it was intended to prevent: interference in their employees' right to be represented by the trade union they select on a majoritarian basis.

75. The Board has on several occasions addressed the proposition that involvement in a trade union's affairs or organizing campaign by persons who exercise managerial functions within the meaning of subsection 1(3)(b) amounts to employer support within the meaning of section 13.... Later decisions, however, rejected the automatic application of section 13 in these circum­stances, as the Board noted in Addidas Textile (Canada) Ltd., [1980] OLRB Rep, May 639, where (at paragraph 6) it said this about what is now section 13:

The purpose of the section, in keeping with the scheme of the Act, is to maintain the necessary arm s length relationship between employers on the one hand, and trade unions, as representatives of employees, on the other.

……The purpose of the section is to prevent the certification of a trade union which is party to a "sweetheart deal" with an employer or is the recipient of employer support so that it does not owe its sole allegiance [sic] to those whom it is certified to represent. The Board has consistently applied the section having regard to its underlying purpose.

(For a purposive approach to section 13 in quite another context see University of Toronto, [1988] OLRB Rep. March 325 where the Board found that continued access to employees through an internal mail system by an employee association which was seeking to assist CUPE's organizing campaign was not a contravention of section 13 of the Act).

9. The Tn-Can decision cited by counsel found the provision of an employee list to an employee organization to be employer "support" precisely because it adopted such a purposive approach to section 13. At paragraph 15 of the decision the Board states:

10. The bargaining process between employers and employees always implies, in addition to their common interest, some degree of conflict between the immediate economic interests of the bargainers - the payer and receiver of wages. This conflict of interest will necessarily co-exists [sic] with their common interest in the welfare of the enterprise from which they both derive their income; and we do not mean to suggest that harmonious relations do not exist between employers and trade unions. But short-run conflicts of economic interest are inevitable, and if they are to be resolved through the process of collective bargaining, it is highly inappropriate for the agency which represents one party to the bargain, to be in any measure under the influence of the other. Collective bargaining by its very nature requires an arm's length relationship between the bargaining parties, and there are a number of statutory provisions designed to ensure that this is the case.

11. After reviewing the unique facts in that case including (a) managerial involvement in the circulation of a petition against another trade union several weeks earlier by the same employ­ees who subsequently formed the employee association (the President of the employee association was permitted to hold a meeting in opposition to that union on company premises, the petition was typed for him by an office employee and freely circulated on company premises and company time), (b) the formation of the association as a means to frustrate another union's organizing cam­paign, and (c) a general opposition to unions and to collective bargaining by the President of the employee association, the Board concluded at paragraph 22:

12. It is clear that the possession of a list of employee names and phone numbers is a significant asset to an individual contemplating the formation of a trade union, and in the absence of any explanation from Mr. Malaca, we must conclude that he was actively seeking to assist Koslow­sky in his efforts to form the intervener. It is hardly likely that he would have done the same for a truly independent union such as the U.A.W. (certainly counsel's reticence with respect to the list is the more usual employer reaction), and we cannot find on the evidence that the support was given either inadvertently, or by an individual in a managerial capacity acting on his own, and contrary to the employer's interests. On the contrary, the fact that the employee list was so readily given to the intervener raises precisely the kind of question concerning its independence to which section 13 is directed. And where, as here, the intervener has no previous bargaining history, and was formed in secret, by a small group of union opponents, in the shadow of another union's organizing campaign, it is incumbent upon those employees, and the particular responsibility of the Board, to ensure that section 13 is not contravened. This does not mean that union opponents may not react to an organizing campaign by forming another employee organization. It is simply that if they do so - and especially in circumstances similar to those in the instant - the Board must give careful consideration to any evidence suggesting a non-arm's length relationship with the employer, and to any allegations or evidence respecting the volun­tariness of the employee organization's membership evidence.

13. On the facts of that case, the Board found that in supplying an employee list to the asso­ciation the arm's length relationship underlying the collective bargaining regime and the indepen­dence of the employee bargaining agent necessary for true collective bargaining had been compro­mised. Similarly, such support cast doubt upon the voluntariness of the membership evidence which had been solicited by the employee association.

14. The facts of Tri-Can are readily distinguishable from the present. Unlike the case in Tri-Can, the trade union applicant was not formed to thwart another union's organizing attempts. Unlike the situation in Tri-Canada, the applicant trade union in this instance is desirous of con­ducting meaningful collective bargaining and indeed, has a long history of arm's length collective bargaining with the parent company of CMS. (A collective bargaining relationship which has not always been free of acrimony and dispute and has not proven to be the "sweet-heart" relationship which section 13 is designed to avoid).

15. In all of the circumstances we find that giving the list of names and addresses to the Steelworkers has not transformed the Steelworkers into a union which "is not qualified to act on behalf of employees in their relations with the employer because of the nature of its relationship with [that] employer." (To use the language found in Edwards, supra). We find that providing the Steelworkers with a list of names and addresses of employees does not constitute "support" within the meaning of section 13 of the Act. In the present circumstances, section 13 does not prohibit the certification of the Steelworkers.

The Status of Richard Poitras

14. Having regard to the entirety of the evidence, on balance, we are of the view that Mr. Poitras does not exercise those types of managerial functions which should result in his exclusion from the bargaining unit by reason of section 1(3)(b) of the Act. We are of the view that Mr. Poi­tras is a lead hand and exercises the responsibilities typical of a lead hand. We view Mr. Poitras to be in much the same position as Messrs. Liscum, Mantha and Poulin, persons whom we have already found to be properly included in the bargaining unit. For the same reasons enunciated in our decision dated October 16, 1989 in respect of Messrs. Liscum, Mantha and Poulin, we have concluded that Mr. Poitras is not the first line of management and does not have the type of con­trol or authority over other employees or the economic lives of his fellow employees as to render him "managerial" within the meaning of the Act.

The Petition and the Unfair Labour Practice Complaint

15. We have determined to address these two issues together because, the facts which form the basis of the union's assertion that the petition does not represent the voluntary wishes of those who signed it, and its assertion that the respondent has violated the Act, are similar and closely tied together.

16. On the evening before the Steelworkers filed the application for certification, Mr. Rich­ard Liscum found out about the union's organizing drive from Mr. Michaud, one of the employee collectors involved in this organizing campaign. Mr. Liscum stated that he was caught off-guard for although he had heard of the union's attempts the year before, the news of the current organizing drive was unexpected. Mr. Liscum spoke with some other employees that night. Those employees either confirmed the organizing drive and indicated they had signed cards, or alternatively that they were unaware of the campaign and had not been approached.

17. Mr. Liscum went home and gave the matter further thought. The following night he called Raymond Poulin, the lead hand who worked the cross-shift. By this time, Mr. Poulin was also aware of the union's campaign. The two men discussed the matter and decided to find out how many people were opposed to the union and then "start some legal action".

18. Mr. Liscum testified that Mr. Poulin had some familiarity with trade unions and certifi­cation applications because of previous experiences. In fact, Mr. Poulin knew of a lawyer who the two men could see to get some advice. Mr. Poulin told Mr. Liscum that concerned employees could sign a petition but to do it "the legal way" they should go see this lawyer. It was Ray Poulin who first spoke to Mr. Liscum that employees could oppose the union through a petition. There­after, when Mr. Liscum spoke to other employees he spoke of the possibility of a petition. He would indicate to employees who asked about the matter that "we're working on it. We'll see what we can do."

19. At some point in time after this original telephone conversation, Mr. Poulin advised Mr. Liscum that the lawyer he knew, Mr. Ken Valin, would provide the men with the petition which the employees could sign. Mr. Poulin attended at Mr. Valin's office to pick up the petition. Mr. Liscum did not go to Mr. Valin's office and was not present when the petition was drafted.

20. Approximately one week after their telephone conversation, on Thursday, June 22nd, Mr. Liscum met Mr. Poulin at the local Burger King. The men discussed the petition. Mr. Poulin instructed Mr Liscum about the advice he had received from Mr. Valin in respect of the circulation of the petition. Mr. Poulin told Mr. Liscum that the petition had to be circulated on the employees' own time, off company premises and without involvement from management. It had previously been agreed that Mr. Liscum would circulate the petition.

21. From the Burger King Messrs. Liscum and Poulin travelled to a local Harvey's restau­rant. There Mr. Liscum obtained the signatures of nine employees on the petition. While there, Mr. Jeff Hansellman volunteered to be a witness to Mr. Liscum's circulation of the petition. Mr. Liscum did not know how people knew to be at the Harvey's to sign the petition stating "that was Ray Poulin's part. I could not report on that issue". Similarly, he did not know what Mr. Poulin said to employees in order to ensure they were at the Harvey's to sign the petition.

22. From the Harvey's restaurant, Messrs. Liscum, Poulin and Hansellman travelled to a nearby Country Style Donuts and obtained the signatures of four more employees on the petition. Mr. Liscum was unable to testify about how these employees knew that he would be at the Donut Shop. He did testify that these employees would have known to go to the Donut Shop "... through my cross-shift lead hand, Ray Poulin" but again did not know what Ray Poulin had said to them.

23. It took approximately two hours from the time that Mr. Liscum met Mr. Poulin at the Burger King (at approximately 11:20 a.m.) until the time he obtained the last signature at the Donut Shop. June 22, 1989 was a regular work day for Mr. Liscum. After Mr. Liscum obtained the last signature he returned to work. Mr. Liscum had obtained permission not to be at work during this time from his foreman, Gus Lemieux. He told Mr. Lemieux he had some personal business to take care of. He did not advise any of the employees that he had been given time off work to attend to personal business.

24. After work that day (and after the employee meeting to which we will refer later herein) Mr. Liscum attended with Jeff Hansellman at Fielding Memorial Park. There in the space of a little over sixty minutes (from 3:30 p.m. to 4:36 p.m.) they witnessed the signatures of thirty-two people to the petition. Mr. Hansellman witnessed all the signatures. Mr. Hansellman was scheduled to work the afternoon shift on that day, and, from the evidence was obviously late for the commencement of this shift at 3:30 p.m. Mr. Hansellman did not ask for permission from any­one to come in late and "was just late that day". Mr Liscum testified that people would have known to be at Fielding Memorial Park because by this time people in the plant were aware of the petition. He indicated that with "word of mouth" it "flew from there". At the park, Mr. Liscum explained to employees that he had a petition "against" the Steelworkers and that he was repre­senting the petitioners.

25. That evening, while Mr. Hansellman was on his lunch break from 9:30 p.m. to 10:00 p.m., the two men witnessed two more persons sign the petition at a local Pizza restaurant. It was Mr. Hansellman who arranged for these persons to be at the restaurant on that day.

26. The following day, shortly after 12:00 noon, Mr. Liscum and Mr. Hansellman witnessed two more signatures at the Country Style Donut. Mr. Hansellman was not scheduled to work that day. Mr. Liscum was scheduled to work that day but only worked until noon. He again had asked for some time off for personal reasons as he was in the midst of re-mortgaging his house and needed to see his lawyer and Bank Manager. Mr. Liscum was not asked to give a reason in support of his request for time-off on this occasion. The two employees did not ask any questions about the petition. The employees knew to attend at the country style "through Ray Poulin" although Mr. Liscum was not aware of what Mr. Poulin had said to the employees. Later that afternoon, Messrs. Liscum and Mr. Hansellman attended at the residences of two other employees and obtained their signatures on the petition.

27. On Sunday, June 25th, three more people signed the petition. Messrs. Liscum and Han­sellman testified that each of those three persons signed at Fielding Memorial Park. It was Mr. Lis­cum's evidence that this occurred at the end of a special overtime shift which he had worked that Sunday. In direct contradiction to that evidence the union called Terry McQuillan. Mr. McQuillan testified that, notwithstanding the fact that he wrote on the petition next to his signature that he signed the petition at 9:00 p.m. at Fielding Memorial Park, he in fact signed it in the plant parking lot earlier that evening. Mr. McQuillan stated that he wrote Fielding Memorial Park because Mr. Liscum told him to write either that or Country Style Donut or "anything but company property".

28. Mr. McQuillan's testimony was supported by Mr. Brian Bernier who testified that he drove Mr. McQuillan to and from work that day. Mr. Bernier testified that he drove Mr. McQuil­lan home that evening, at about 8:20 p.m., did not stop at Fielding Memorial Park, and stayed at Mr. McQuillan's home for roughly one hour. Mr. Bernier also testified that when he left work that evening with Mr. McQuillan, Mr. Liscum was still at the plant.

29. The last two signatures on the petition were obtained on Monday, June 26, 1989. Those persons signed off company premises at a time when Mr. Liscum was not scheduled to work. Mr. Hansellman was scheduled to work on that day. The first of the two signatures was obtained at 12:10 p.m. while Mr. Hansellman was on his scheduled lunch break. The other was obtained shortly thereafter at a time when Mr. Hansellman should have been at work. Mr. Hansellman however, had advised his lead hand (Ray Poulin) that he needed some personal time-off and that he might be late getting back to work. Again, it was Mr. Poulin who had arranged for Mr. Liscum to meet the first of these two signatories on Fielding Road. Mr. L:iscum did not know what Mr. Poulin had told these signatories about the petition.

30. There were no managerial persons present when any signature was obtained on the petition. Mr. Liscum testified that he did not discuss the petition with any member of management. The evidence discloses that while the signatures were obtained on the petition there was very little discussion. Employees generally did not ask any questions about the petition which they were sign­ing. Persons did ask what would happen next or make comments that they hoped it would do some good. Mr. Liscum kept control of the petition from the moment he received it from Mr Poulin until he delivered it to his counsel's office. Mr. Liscum attended the first day of hearing scheduled for this matter in Toronto and requested personal time off for that without indicating the reasons why he wanted the time off. He has not been reimbursed and has not made any arrangements or agreements with his employer with respect to his legal expenses, his expenses for attendance at the hear­ing or the wages he has lost by reason of his attendance at the hearing. Mr. Liscum testified that the expenses were to be paid by employee contributions. He however was not involved in the col­lection of those contributions, "other people" did that. He indicated that his information about monies collected came from discussions he had with the other lead hand, Ray Poulin.

31. Ray Poulin did not testify. In addition to Mr. Liscum's testimony about the involvement of Ray Poulin in the petition, the Board also heard the evidence of Ken Bergeron who was called by the trade union. Mr. Bergeron testified that he had observed Mr. Poulin walk around the shop with a copy of the Notice of the Union's Application in his hand. Later that evening Mr. Poulin approached Mr. Bergeron to ask if he wanted to sign a petition. During the course of that conver­sation Mr. Poulin told Mr. Bergeron that it had been his experience that "any organizer or top people trying to bring in a union lose their jobs". The two men discussed the pros and cons of unionization. Mr. Bergeron indicated he needed some time to think. Later that night Mr. Poulin again approached Mr. Bergeron. During the course of that conversation Mr. Bergeron asked Mr. Poulin "if he [Poulin] could save my [Bergeron] job if I [Bergeron] would sign the petition." Mr. Poulin responded "he [Poulin] would sure hope he [Poulin] could". This evidence was not chal­lenged in cross-examination and was not contradicted in any other manner.

32. We turn now to that evidence which relates specifically to the section 89 complaint. There are essentially three aspects to that complaint; statements allegedly made by Mr. Letts at a meeting of all employees, statements allegedly made by Mr. Letts during private conversations with Gaston Michaud and Ren 2i Sauve, and statements allegedly made by Mr. Poitras. We turn first to the employee meeting.

33. The first day on which the petition was circulated, June 22, 1989, was also the day that the respondent conducted one of its usual profit sharing meetings with employees. These meetings are regularly conducted by CMS to bring employees up-to-date about the company's profit sharing plan and to discuss matters of mutual concern or interest. The applicant does not assert that the holding of this meeting was an unfair labour practice but alleges that certain statements made by Mr. Letts during the meeting violated the Act. On June 22, 1989, the profit sharing meeting for the day shift of which Mr. Liscum was then a part was held in the lunch room at 3:00 p.m. The after­noon shift of which Mr. Hansellman was a part had its profit sharing meeting scheduled for 3:30.

34. We heard the evidence of twelve witnesses including Mr. Letts about what was and was not said and done during the meeting. On a key allegation, namely comments made about a plant expansion, evidence of the witnesses called by the trade union, stood in stark contradiction to the evidence of those witnesses who testified on behalf of the respondent or the objecting employees.

35. It is alleged in the section 89 complaint that during the meeting "Letts advised employ­ees that the respondent's profit sharing plan could be cancelled as a result of the union's applica­tion for certification". The evidence does not support this allegation. We find instead that an employee asked whether the profit-sharing plan could be taken away. Mr. Letts respondent that the profit-sharing plan was like any other benefit which the company could, if it so desired, adjust or alter from time to time as benefits were added or deleted. Mr. Letts added however that the profit-sharing plan was a particularly good plan for the company and its employees. The plan allowed the company to attract and retain employees. To cancel the plan would therefore not be a good business decision and the company had no plans to cancel this benefit.

36. The one serious area of dispute arising out of the June 22, 1989 meeting relates to an answer given by Mr. Letts in response to a question from Mr. Randy Wilson who asked whether the planned expansion of the plant was cancelled. Mr. Letts testified that he responded by stating that "No, it wasn't cancelled, it was on hold until mid-July". Mr. Letts' denied the applicant's alle­gation contained in the section 89 complaint filed that he "advised employees that the plant expan­sion was on hold until the hearing date of the instant application for certification." He testified that he made no reference to either the union, the organizing campaign, the application for certification or the hearing date at any time during the course of this meeting.

37. Mr. Letts did not at the time of the meeting explain why the expansion was postponed. Before this Board he testified however that although the Provincial Government (Nor Dev) had approved a loan required for the planned expansion, CMS had not received approval for a loan from the Federal Government (Fed Nor). Mr. Letts however had spoken to Mr. Gaston Demers a member of the Fed Nor Board. Mr. Demers had indicated to Mr. Letts that the application would be dealt with at the next Fed Nor Board meeting in July. Thereafter CMS would know whether it would receive the loan. Mr. Letts testified the question of the loan from Fed Nor was a very sensi­tive issue and he was concerned that any information regarding the loan might affect the Fed Nor application. He further stated that if the loan was approved he could proceed with the expansion. On the other hand, if it was rejected (as it ultimately was) he would have to go back to the CMS Board of Directors and request additional equity financing to replace the loan.

38. Mr. Demers testified. He indicated that the CMS application was dealt with by the Fed Nor Board at its meeting on June 13th. The Board did not approve the application and Mr. Dem­ers advised Mr. Letts of this fact shortly thereafter (and before the June 22nd meeting). Mr. Dem­ers further testified however that he advised Mr. Letts that these decisions could be appealed. Moreover, Mr. Demers testified that in view of the importance of the matter to the Sudbury com­munity he recommended that Mr. Letts appeal the decision to the subsequent meeting of the Fed Nor Board. That meeting would take place July 17th to 19th. The matter was left with Mr. Letts who indicated to Mr. Demers that he would take it under advisement and discuss it with his staff and the Board of Directors and determine what to do. CMS did not in fact appeal the decision. The application was not discussed at the July Fed Nor meeting and Mr. Demers did not speak to Mr. Letts again until shortly before Mr. Demers testified before this Board.

39. As indicated, many people testified about the meeting. Without detailing their evidence it is sufficient to note that each witness had a somewhat different recollection of what Mr. Letts said or did in response to this question from Randy Wilson. Mr. Wilson himself testified that Mr. Letts answered the question by stating that "it [the expansion] was on hold until July 17th." When Mr. Wilson asked "what was July 17th?" Mr. Letts did not respond but merely "shrugged" his shoulders. Mr. Wilson testified that at that time Mr. Letts had the agenda for the meeting in his hands. Mr. Wilson did not press the issue any further because "I [Mr. Wilson] figured it was none of my business. I don't run the place." Mr. Wilson further testified that he did not at any time or for any reason think the expansion was dependent upon or had anything to do with the union or the organizing campaign.

40. Other witnesses called by either the applicant or the objecting employees had different recollections of the meeting. They testified that Mr. Letts either referred specifically to July 7th, (the first date of the hearing of this application for certification and the date referred to in the "green sheets" - Form 6 Notice to Employees - posted on the bulletin board) or did not specifically refer to any date to which the planned expansion was postponed. These witnesses testified that Mr. Letts either pointed to his left to where the green sheets were posted, his right to where the green sheets were posted, or did not point at all. He either moved about during the meeting or moved very little. Mr. Letts may or may not have shrugged in answer to the question depending on each witness' recollection. Similarly, he either did or did not have a piece of paper in his hand. The same witnesses either testified that Mr. Letts advanced no reason for the postponement [as was the case of Mr. Robertson and Mr. Willetti and in this regard it was asserted by the union's witnesses that the pointing to Form 6 was reason enough [as was asserted by Mr. McQuillan, and Mr. Gagnon]; referred to a postponement "due to business reasons" and thereafter pointed to the notice [Mr. Michaud and Mr. Aubin]; specifically referred to the postponement "until he found out what was going to happen to the certification of the union" [Mr. Leveille]; specifically stated that he was waiting for funding or a grant [Mr. Brisson and Mr. Bouchard]. Whatever else may have been said, it is evident that during the meeting no reference was made to any decrease in employment levels at the existing operations. There is no evidence to suggest that the job security of employees then employed at CMS was in any way at risk because of a postponement of the plant expansion.

41. In our view, in the circumstances it is not unusual that each witness had a different rec­ollection of the meeting. There were approximately sixty to seventy employees in the lunch room for this meeting. It is highly likely that, four to eight months later, each would have a different rec­ollection of what he or she heard at that meeting. In addition, that recollection would probably be influenced (both at the time of the meeting and in testimony before the Board) by a number of physical environment factors (i.e. the person's position in relation to Mr. Letts) as well as a certain degree of self interest. That is not to say that the witnesses before this Board were deliberately untruthful. Human nature being as it is, it is not unusual that people see and hear what they want to see and hear. The frailties of human nature are such that a witness' recollection of events is shaped not only by the circumstances at the time, but undoubtedly their mental restructuring of events several months later while in the witness box. In that mental restructuring a witness may either consciously or unconsciously have regard to circumstances which occurred after the event which they are asked to recollect. In this case, the circumstances at the time include the union's application for certification which, by the time of this meeting, was a known fact, discussed by all employees and was a "hot" item in the plant. The circumstances after the event include the denial of funding by Nor Dev. CMS received formal written notification on September 29, 1989 that its application had been rejected. Nevertheless, the plant expansion was implemented.

42. Having regard to all of the evidence in respect of this meeting, and indeed to the totality of the evidence and the inferences which may reasonably be drawn from the totality of that evi­dence, we find that Mr. Letts did not, during the course of this meeting advise or indicate to employees that the plant expansion was on hold until the hearing date of the application for certifi­cation or because of the Steelworkers' application. We find that Mr. Letts did advise employees that the expansion was on hold. We accept that he did so because of the issue of the Fed Nor financing. In our view, there is no inconsistency or contradiction in the evidence of Mr. Demers and Mr. Letts. Although Mr. Letts may have been advised of the rejection of the application by Fed Nor prior to the June 22nd meeting, he was also advised to appeal that rejection to the next Fed Nor Board meeting. He indicated he would take that under advisement and discuss it with appropriate persons. At the time of the June 22, 1989 meeting therefore the issue of Fed Nor financing and the options available to CMS if that financing was not forthcoming was still unre­solved from Mr. Letts' perspective. Mr. Letts also knew that if he pursued the Fed Nor financing it would be dealt with in mid July. As the matter was still open it was not unusual for Mr. Letts to say very little about the expansion other than that it had been postponed until some time in mid-July.

43. Moreover, in view of all of the evidence and circumstances which existed at the time, (including Dr. Curlook's letter, the conversations between Mr. Letts and individual employees referred to herein, the stage of the union's campaign and its application for certification, and gen­erally the respondent's conduct during that campaign) we concur with counsel for the respondent that Mr. Letts "would have had to have taken leave of his senses" and would have been "suicidal" to deliberately link the planned expansion with the union's activities. That action would be wholly inconsistent with the remainder of the evidence. The reasonable inference to be drawn from the evidence is that Mr. Letts' did not in a room of sixty or more persons, some of whom he knew to be union supporters, refer to the union's application for certification and/or the upcoming hearing date, and/or for good measure deliberately point to the green sheets posted on the bulletin board in case any employee had missed the point. In light of all the evidence we prefer the evidence of Mr. Randy Wilson, the employee who asked the question about the plant expansion, about what was said and done during that meeting.

44. Although we find that Mr. Letts did not, at the June 22nd meeting act in a manner which contravened the Act, we do find that the meeting is one of the circumstances which we must consider when assessing the overall environment surrounding the petition. Although not in any way determinative of the issue, the meeting is one of the factors or circumstances to consider in determining whether the petition is a voluntary expression of the employees' true wishes. In this regard we concur with the decisions of the Board in Catfish Calhoun Inc.,[1981] OLRB Rep. Nov. 1551 and Mitten Industries Galt Ltd., [1975] OLRB Rep. March 155 where the Board referred to employer meetings which preceded the circulation of a petition. Although the Board found that the respondent employers had not violated the Act by their conduct at the meetings the meetings were nevertheless considered when the voluntariness of the petition was addressed. In such cir­cumstances the issue is not whether the employer breached the Act but "... whether the evidence contradicting union membership can be relied on by the Board". As noted in Mitten Industries Galt Ltd., sup ra" it is quite possible that the employer's speech, although not unlawful, may still cast doubt on the reliability of the employee petition".

45. Next, we turn to the conversation which Mr. Letts had with Ren 2i Sauve and Gaston Michaud. Mr. Sauve's evidence was somewhat disjointed and vague in details as Mr. Sauve readily admitted that he could not remember with any degree of precision or clarity exactly what was said by either Mr. Letts or himself on any specific occasion. Mr. Sauve stated that he had two lengthy conversations with Mr. Letts during the union organizing campaign and that his evidence before the Board was a combination of those conversations. As he testified it became clear that Mr. Sauve was giving an overview and synopsis of the conversation and could not recall with any degree of specificity exactly what was said and in what context. This is not to say that Mr. Sauve was not tell­ing the truth. Indeed, Mr. Sauve struck us as an open and honest witness. For that reason, we have examined the thrust of his evidence. In our view, the thrust of his evidence is not materially differ­ent from Mr. Letts' recollection of the conversation. The differences which do exist do not support a finding that the respondent violated the Act.

46. The conversation took place on the plant floor and was initiated by Mr. Sauve. Mr. Letts and Mr. Sauve have known each other for more than ten years, are friends, and frequently discuss matters of mutual concern on the plant floor. It is clear that Mr. Sauve told Mr. Letts that after much thought he had signed a union card and was in favour of union representation. Mr. Sauve volunteered this information to Mr. Letts and did not feel threatened in doing so. Mr. Sauve testified that Mr. Letts stated that "he didn't think the company could survive with the union" as alleged in the complaint. Mr. Letts denied making any such statement. Having regard to the total­ity of Mr. Sauve's evidence, in light of Mr. Letts' denial, we are not satisfied that Mr. Letts linked the continued survival of CMS to non-unionization as suggested by Mr. Sauve. At best there was a discussion about their mutual concerns about the possible impacts of unionization.

47. It is clear that the two men discussed the pros and cons of unionization and their con­cern about the effect that unionization would have upon the company. Our review of the evidence of both men however indicates that Mr. Letts' comments fall within the permissible parameters of an employer's freedom to express his views provided for in section 64 and were not coercive, intimidating or threatening. Neither did Mr. Letts make any promise or use undue influence during the conversation. During the course of the conversation, it is entirely likely that reference was made to the competitive nature of the business and the possible effect of unionization upon cus­tomers as asserted by Mr. Sauve. That in fact is not disputed by Mr. Letts. Having regard to the totality of the evidence however, we find that Mr. Letts did no more than express his view point which was basically that he did not know what effect unionization would have.

48. Similarly, we find that the evidence in support of the allegation in the complaint that Mr. Letts advised Mr. Michaud of "negative consequences of a successful organizing campaign" does not support an unfair labour practice finding. Again, we note the uncontradicted evidence that Mr. Michaud advised Mr. Letts at the commencement of the conversation that he was a union supporter who had been involved in the union organizing campaign. Like Mr. Sauve, Mr. Michaud felt no compunction about disclosing that information. We also note Mr. Michaud's own evidence that during the conversation, in response to one of his questions, Mr. Letts specifically told him people who signed the card would not get fired because "it's a guy's own choice". On the basis of the evidence before us, we conclude that Mr. Letts, at Mr. Michaud's own request, spoke of the effect which unionization might have. He did so because of Mr. Michaud's expressed concern relat­ing to "rumours" going around the shop. In fact, Mr. Michaud met specifically with Mr. Letts (having previously discussed the desirability of doing so with Wayne Fraser~ the Steelworker staff representative in charge of this campaign) to discuss his concerns. In that context, Mr. Letts did indicate that he was also concerned about the effect which unionization might have upon the busi­ness of CMS because he did not know how customers would react or how the company's competi­tiveness might otherwise be affected. In so doing however, Mr. Letts did not step over the line of his freedom to express his views and did not use coercion, intimidation, threats, promises or undue influence.

49. The last event in support of the unfair labour practice complaint with which we will deal is the "meeting" which Rick Poitras had with the other employees in his department on June 19, 1989. As indicated, Mr. Poitras is not a managerial employee within the meaning of section 1(3)(b) of the Act. He is a lead hand. The uncontradicted evidence is that management at CMS was not aware of the discussion which Mr. Poitras had with certain employees on the shop floor. There is no suggestion that Mr. Poitras was acting at the suggestion or behest of management. From the totality of the evidence, we conclude that during this brief shop floor discussion Mr. Poitras was expressing his own personal view points. A reasonable employee would have considered his com­ments in that vein. We therefore find that the discussions which Mr. Poitras had with the employ­ees do not constitute a violation of the Act by CMS.

50. We then turn to the voluntariness of the petition. Counsel for the Steelworkers asserted that we ought not to rely upon the petition because it was not supported by credible viva voce evi­dence. Counsel pointed to the direct contradictory evidence of Mr. Liscum and Mr. McQuillan. Counsel argued that we should accept and prefer the evidence of Mr. McQuillan as supported and corroborated by Mr. Bernier and reject the evidence of Messrs. Liscum and Hansellman. Counsel submitted that if we find that Mr. McQuillan signed the petition in the company parking lot in the circumstances to which Mr. Mr. McQuillan testified and not at Fielding Memorial Park as asserted by the objecting employees, then the remainder of the evidence tendered by Messrs. Liscum and Hansellman regarding the origination and circulation of the petition is suspect and could not be relied upon. Counsel argued that this in and of itself was sufficient to dispose of the petition.

51. In the alternative, counsel points to a number of factors which should cause us to con­clude that we could not rely upon the petition as a free and voluntary expression of the true wishes of the employees. These factors include inter alia Mr. Letts' comments during the June 22nd meeting, Mr. Poitras' comments during the brief shop floor discussion he had with employees, the involvement of lead hands in the origination and circulation of the petition, the threat made by Mr. Poulin to Mr. Bergeron, the fact that both Mr. Hansellman and Mr. Liscum at some time during the circulation of the petition each took time off from work, and the "gap" in the evidence con­cerning the origination of the petition because Mr. Poulin was not called.

52. The objecting employees asserted the petition was voluntary and pointed to the total lack of evidence of any involvement by management in either the origination or circulation of the petition. Counsel argued that the fact that Mr. Poulin did not testify was not critical because it was submitted all Mr. Poulin did was to pick up the blank petition from the lawyer's office and give it to Mr. Liscum.

53. The Board embarks upon its inquiry regarding the origination and circulation of the petition with care. The rationale for such care has been set out in various decisions. For example, in Morgan Adhesives of Canada Ltd.,[1975] OLRB Rep. Nov. 813, it was noted:

There is a natural suspicion which attaches to a statement of desire following closely upon a union organizing campaign. The Board must assure itself that the "change of heart" indicated by the 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.

54. Along similar lines, in Trim Trends Canada Limited, [1986] OLRB Rep. Mar. 364 the Board states at page 365:

55. Before it will exercise its discretion to direct the taking of a representation vote on the basis of a statement of desire, however, the Board must be satisfied that when union members signed a statement indicating an apparent change of heart, they were doing so voluntarily, and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer and result in reprisals.

56. The burden of proof in circumstances such as this lies with the party which asserts the voluntariness of the petition. The Board has set out its reasoning in this regard in Radio Shack, [1978] OLRB Rep. Nov. 1043 at paragraph 24. In determining whether the petition is a voluntary expression of the wishes of the employees, the Board reviews the overall environment of the work­place. The Board faced with determining whether the petition is a voluntary expression of the wishes of the employees looks to the surrounding facts and circumstances in each case to deter­mine, on an objective basis, whether an employee might reasonably perceive the involvement of management in the petition or might reasonably perceive that whether or not the employee signs the petition is likely to come to the attention of the employer. The test to be applied in such deter­mination is not a subjective one.

57. The facts and circumstances of this case do not persuade us that the petition is a volun­tary expression of the wishes of the employees. There are a number of factors which, when taken together, have caused us to conclude that the objecting employees have not met the burden of proof. Although it may be that none of these factors standing alone would be sufficient to cast doubt upon the voluntariness of the petition, their cumulative effect has caused us to doubt the reliability of the document as a voluntary expression of the employees's wishes. We have already referred to the meeting of June 22nd in paragraphs 33 to 44. The issue here is the reliability of the petition, not the propriety of the respondents' conduct.

58. The applicant refers to the position of Messrs. Liscum and Poulin and argues that their position as lead hands brings the voluntariness of the petition into question. We agree that the position which the originators and/or circulators of the petition hold within the workplace and how these persons are viewed or perceived by their fellow employees is a relevant consideration. How that consideration affects the voluntariness is a question of fact based upon the duties and responsi­bilities of the lead hands and how they are perceived by the employee population. The mere fact that a petition is circulated by a lead hand does not render it involuntary per se. Conversely, the fact that the lead hand circulator is a member of the bargaining unit will not automatically lead to a finding of voluntariness if, viewed objectively, the perception of employees is such that the lead hand exercises a degree of authority sufficient to affect the employment status or relations of the employees of the bargaining unit. (See for example, I. M. Patushak, [1980] OLRB Rep. July 979; Quality Circus, [1979] OLRB Rep. Aug. 794; Trent Electric, [1976] OLRB Rep. April 163; Dad's Cookies, [1976] OLRB Rep. Sept. 545; General Crane, [1974] OLRB Rep. Oct. 662; Apex; [1983] OLRB Rep. Jan. 1; Morgan Adhesives of Canada Limited, supra; Leamington Vegetable Growers Co-operative Limited, [1974] OLRB Rep. June 402; Thornton Sand & Gravel, [1987] OLRB Rep. Oct. 1331; Chatham Concrete Forming, [1986] OLRB Rep. April 426, Westgate Nursing Home Inc., [1981] OLRB Rep. June 810 where petitions were found not to be voluntary because of the position of the circulator of the petition. See F. W. Woolworth Co. Ltd., [1982] OLRB Rep. May 797, Standard Brands Lfd., [1972] OLRB Rep. June 654, Cat Fish Calhoun Inc., supra, Matshishita Industrial Canada Ltd., [1981] OLRB Rep. Nov. 1605 for the contrary conclusion).

59. In our decision dated October 16, 1989, we found that Messrs. Poulin and Liscum did not exercise managerial functions within the meaning of section 1(3)(b) of the Act and were prop­erly included in the bargaining unit. A review of their duties and responsibilities does not suggest that either man is perceived as possessing sufficient authority to affect the employment status of employees in the bargaining unit. The lead hands are not and cannot be perceived as "bosses". Rather, the lead hands are, and can properly be perceived, as being a communicative "link" or "conduit" to and from management. To this extent they do stand apart from the other members of the bargaining unit. Although not managerial, the group of lead hands do differ from other employees in the bargaining unit. In the present case, the fact that a majority of this group of lead hands actively participated in the origination and circulation of the petition (two lead hands jointly thought of the petition and originated it, one lead hand witnessed all the signatures, the other lead hand promoted the petition and directed persons where to go to sign the petition), or otherwise expressed their opposition to the union (as in the case of Mr. Poitras and his shop floor meeting with employees in his department) is a factor to be considered by the Board.

60. Another factor referred by counsel for the Steelworkers and considered by us is that both Mr. Liscum and Mr. Hansellman did, or at the very least employees would perceive that they had been, absent from work for purposes relating to the petition in opposition to the trade union. (In this regard see for example, Irwin Toy Limited, [1971] OLRB Rep. Feb. 52, Saga Investments Limited, [1970] OLRB Rep. July 452, G. Smith Produce Co., [1974] OLRB Rep. June 402, N. J. Spivak, [1976] OLRB Rep. April 158).

61. Another factor considered was the involvement of Mr. Poulin in the petition and his failure to testify. It is clear that Mr. Poulin performed a major role in both the origination and cir­culation of the petition. The objecting employees argued that Mr. Poulin merely "picked up the petition from [Mr. Valin's] office." We do not agree. The evidence discloses that the idea of circu­lating a petition originated jointly with Mr. Liscum and Mr. Poulin. Mr. Liscum took the initiative in calling Mr. Poulin to ascertain his views on the matter but it was Mr. Poulin who first mentioned a petition of concerned employees. The "origination" of the petition was a joint decision which resulted from the telephone conversation between Mr. Poulin and Mr. Liscum. The lack of evi­dence from Mr. Poulin about the origination of the idea of a petition, although not fatal is certainly a factor to consider. (See Phillips Electronics Industries Ltd., [1975] OLRB Rep. Nov. 758, Remmington Rand Ltd., [1963] OLRB Rep. March 535, Trench Electric Ltd., [1976] OLRB Rep. March 163, James M. D. Watt, [19651 OLRB Rep. Oct. 472, Canada-Dry Bottling Co. Ltd., [1987] OLRB Rep. March 337.

62. Similarly, it is clear that Mr. Poulin did much of the "leg work" relating to this petition. Not only was he the only person present when the petition was drafted, the evidence clearly indi­cates that he solicited employees with a view to obtaining signatures to the petition, he directed and instructed employees where and when they could sign the petit:ion, and he collected monies required to meet the expenses of the objecting employees. His role in these aspects of the circula­tion of the petition is particularly significant in light of Mr. Liscum's testimony that at the time employees signed the petition there was very little discussion. From the totality of the evidence, we must conclude that much of the ground work was done by Mr. Poulin before employees signed the petition in Mr. Liscum's possession.

63. Mr. Poulin's failure to testify is significant because of the uncontradicted and unchal­lenged evidence of Mr. Bergeron. Implicit in the conversation between Mr. Bergeron and Mr. Poulin is a threat to job security in both Mr. Poulin's reference to union organizers losing their jobs and his response that he sure hoped he could save Mr. Bergeron's job if Mr. Bergeron signed the petition. The effect of those types of statements must be assessed in light of Mr. Poulin's status as a lead hand. Although not managerial, it cannot be said that Mr. Poulin's comments were simply one employee's view point expressed to another employee. Mr. Poulin made the statements tn order to solicit support for the petition. The statements would have greater force because Mr. Poulin was not simply another employee, but a lead hand who, although not managerial did stand apart from the other employees in the bargaining unit and provides a link to and from manage­ment. (See Westgate Nursing Home Inc., supra and Dad's Cookies, supra). Therefore, not only does the Board not have any direct evidence from Mr. Poulin about his active involvement and participation both in the origination and circulation of the petition, the evidence we do have indi­cates that Mr. Poulin's conduct while soliciting support for the petition was improper and inappro­priate. In the circumstances, his failure to testify raise questions which detract from the weight to be given to the petition as an expression of the voluntary wishes of the signatories.

64. In all of the circumstances, the Board finds that the petition cannot be viewed as a reli­able indicator of the wishes of the persons who signed it. It does not cast sufficient doubt upon the membership filed in support of the application so that the Board should seek the confirmatory evt­dence of a representation vote. The Board is satisfied on the basis of all the evidence before it that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on June 28, 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 membership under section 7(1) of the said Act.

65. A certificate will issue to the applicant. 65. The complaint in Board File 0832-89-U is dismissed.