[1990] OLRB Rep. April 457
2527-89-R Joao Pombinho, Applicant v. Local 444 C.A.W., Respondent
BEFORE: Robert D. Howe, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.
APPEARANCES: L. Suzanne Balzer and Joao Pombinho for the applicant; L. A. MacLean and Mike Darnell for the respondent.
DECISION OF THE BOARD; April 11, 1990
1This is an application under section 57(1) of the Labour Relations Act for a declaration that the respondent (which was formerly the Great Lakes Fishermen and Allied Workers' Union) no longer represents the employees of C. P. Fisheries Ltd. (the "Company") for which it is the bargaining agent.
2The respondent does not contest the timeliness of the application, and it appears from the documentation filed with the Board in respect of this matter that the application is timely.
3The Board finds that the respondent is currently the bargaining agent for a bargaining unit comprised of all employees of the Company engaged in fishing on Lake Erie, save and except boat captain, those above the rank of boat captain, and office and clerical staff.
4Having regard to the agreement of the parties, the Board further finds that the applicant is an employee within the bargaining unit. It is common ground between the parties that there were six employees in the bargaining unit at the time the application was made. The applicant, through his counsel, has filed with the Board in a timely fashion a statement of desire (the "petition") by which four of those six employees purport to indicate that they no longer wish to be represented by the respondent (also referred to in this decision as the "Union", for ease of exposition).
5During the course of the hearing of this matter on March 22, 1990, the Board heard testimony from three witnesses: the applicant and Francesco Floreno, who were called by applicant's counsel, and Joao Vidinha, who was called by respondent's counsel. In making the findings of fact set forth in this decision, we have carefully considered all of that oral evidence, as well as the documentary evidence that has been placed before us. Since we found Mr. Vidinha's testimony to be somewhat more reliable than that of the applicant and Mr. Floreno, we have generally relied upon his testimony in resolving conflicts in the evidence.
6Section 57(3) of the Act provides as follows:
Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
7The various principles, considerations, and concerns which the Board generally takes into account in determining whether or not an applicant has satisfied the onus of establishing the voluntariness of a termination petition are well established in the Board's jurisprudence. See, for example, Johnson Matthey Limited, [1987] OLRB Rep. Apr. 519; Dynasty Inn, [1986] OLRB Rep. March 326; Crothall Services Limited, [1984] OLRB Rep. Jan. 22; Westinghouse Canada Inc., [1982] OLRB Rep. July 1098; Chanterways Transportation Limited, [1981] OLRB Rep. Aug. 1108; Ontario Hospital Association, [1980] OLRB Rep. Dec. 1759; and Upper Canada Glass, [1981] OLRB Rep. Aug. 1181. As noted in Almag Aluminum Ltd., [1983] OLRB Rep. Nov. 1779, at paragraph 15, "the Board has consistently interpreted the word 'voluntary' in section 57(3) to mean that the petition is free of actual or perceived employer influence and that employees who sign a petition are not motivated by a perceived threat to their job security or by concern that failure to sign would be communicated to the employer or could result in reprisals." If employees are motivated to sign a petition by such concerns, or by an expectation that they will be financially rewarded by their employer for doing so, the petition will not be "voluntary" within the meaning of section 57(3).
8Having duly considered all of the evidence and the submissions of counsel, we have concluded that the applicant has not met the onus of establishing on the balance of probabilities that the petition represents a voluntary expression of the true wishes of its signatories. Although the petition was prepared by applicant's counsel and signed by the applicant and three other bargaining unit employees in counsel's office, it is clear that what motivated them to sign it was the belief that if they "got rid of the union", the Company would increase the fishing quotas available to them and thereby substantially enhance their potential earnings.
9As indicated in Peralta Foods, [1987] OLRB Rep. Sept. 1162, which was entered as Exhibit 2 in these proceedings on the agreement of the parties, the owners of fishing licences are able to transfer the quotas on the licences from one vessel to another, thereby increasing or decreasing the income which crew members are able to earn. At all times material to this application, the applicant and the other signers of the petition were of the view that since the Union came in, their incomes have decreased substantially as a result of the Company, through Vito Peralta, making only one quota available to them, instead of the two quotas which they were permitted to fish in the previous year. In this regard it was the applicant's evidence that his income from fishing was almost $30,000 in the year before the Union came in, and that it fell to $13,000 the next year, rising only to $18,000 and $20,800 in the ensuing two years.
10As noted in paragraph 4 of Peralta Foods, supra, Mr. Peralta directed, managed, and controlled the fishing company (538391 Ontario Limited c.o.b. as Peralta Foods - Ilda C) which was the corporate respondent in that case. The applicant testified in the instant case that Mr. Peralta is also a 50% owner of the Mummery Bros., which is the boat on which the applicant and the other five employees fish. He further testified that Mr. Peralta has seven quotas and only two boats. It is the applicant's belief that if the crew of the Mummery Bros. eliminate the Union, Mr. Peralta will give an additional quota to that boat, thereby enabling them to earn substantially more income. Although the applicant denied doing so, we accept the evidence of Mr. Vidinha that in October of 1989, while discussing the desirability of decertifying the Union, the applicant told him that if they signed a paper against the Union, they would get more fish and would make $40,000. When Mr. Vidinha asked the applicant how he knew that, the applicant replied that Mr. Floreno, who is another deckhand on the boat, told him that Mr. Peralta had indicated that if they signed against the Union they would get more fish.
11It is unnecessary for purposes of this decision to determine whether or not Mr. Peralta actually made any such statement to Mr. Francesco. It is also unnecessary to determine whether or not Mr. Francesco told the applicant that Mr. Peralta had done so. What is significant for purposes of this decision is the fact that the applicant believed that to be Mr. Peralta's expressed intention, and used it in attempting to persuade crew members to sign against the Union. (Although the evidence adduced before us only directly establishes that the applicant made that statement to Mr. Vidinha, it is highly probable that he made similar statements to other employees in attempting to gain support for terminating the Union's bargaining rights.) It is also clear from the evidence that the applicant's motivation for obtaining employees' signatures on the petition and filing this application was his belief that he and his fellow crew members would be financially rewarded by Mr. Peralta, by means of a quota transfer, for returning the boat to its previous non-union status. Moreover, it was certainly not unreasonable for the applicant and other employees to believe that Mr. Peralta would be prepared to reassign quotas on the basis of a boat's union or non-union status, as it was common knowledge among the area fishermen that Mr. Peralta was strongly opposed to the Union, and that he (and Peralta Foods) had been ordered by the Board to pay over $100,000 in compensation to crew members after the Board found that he had, among other things, removed fishing quotas from the Ilda C and laid off its captain and crew to punish them for having joined the Union (see Peralta Foods, supra).
12For the foregoing reasons, we are not satisfied that not less than forty-five per cent of the employees in the aforementioned bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the respondent. Accordingly, this application is hereby dismissed.