United Steelworkers of America v. GSW Inc., 1990 CanLII 5829

[1990] OLRB Rep. May 535

2695-88-R; 2927-88-U; 2997-88-U United Steelworkers of America, Applicant v. GSW Inc. c.o.b. as GSW Heating Products Division, Respondent v. Group of Employees, Objectors; United Steelworkers of America, Complainant v. G.S.W. Inc., c.o.b. as G.S.W. Building Products Company, Respondent; GSW Inc., c.o.b. as GSW Heating Products Division, Complainant v. United Steelworkers of America, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and C. McDonald.

APPEARANCES: P. Turtle and W. Dowsett for the United Steelworkers of America; Steven J. Fishman for GSW Inc. c.o.b. as GSW Heating Products Division; Darrell Dexter for the objectors.

DECISION OF VICE-CHAIR OWEN V. GRAY, AND BOARD MEMBER C. MCDONALD; May 7, 1990

1. In our decision of July 18, 1989 in these proceedings we made the following findings:

We are satisfied on the basis of all the evidence before us that as of the date determined in paragraph 2 more than fifty-five per cent of those employed in the bargaining unit at the time the application was made were members of the applicant.

We are not persuaded that at the time this application was made the employer had plans for expansion which were sufficiently certain as to warrant our directing that a representation vote be conducted at a future date to determine the outcome of this application.

We are not persuaded that the employees who acted as organizers for the union engaged in conduct which should result in our exercising our discretion to direct that a representation vote be conducted.

We find and declare that the respondent violated the Labour Relations Act by questioning employees with respect to whether they had joined the appli­cant or attended union meetings.

We certified the applicant without directing a representation vote, awarded certain remedies for the employer's violation of the Act and dismissed a complaint by the employer that the union had violated the Act. We indicated in our decision that our reasons for it would be provided at a later date, if requested. Both parties have requested that we do so.

The "Build-Up" Issue

2. When the Board grants certification without a vote under section 7, the representation question is determined by the wishes of those employed in the subject bargaining unit on the appli­cation date. When the Board directs that a representation vote be conducted, the outcome is deter­mined by the wishes of those employed in the unit on a later date or dates determined by the Board. Over the years, the Board has said it will exercise its discretion under subsection 7(2) of the Act in favour of directing a representation vote so as to enfranchise subsequently hired employees when it is persuaded that, as of the application date, the employer had a firm plan for an imminent "build-up" of the work force in the bargaining unit to such an extent that those employed in the unit on the application date are not truly representative of those expected to be employed in that unit in the long term. In that event, the Board will also defer both the conduct of the vote and the date as of which voter eligibility is determined until a representative number are so employed.

3. Before it will direct a deferred vote by reason of planned "build-up", the Board must be persuaded that the plan is "firm", in that its actualization is not dependent on factors beyond the control of the employer, and that the planned build-up will take place within a reasonable period of time. It must also be persuaded that the existing group is insufficiently representative of the expected total. That normally turns on whether the employees employed at the time of the applica­tion constitute less than fifty per cent of the level employment will reach as a result of the build-up. In assessing "build-up" situations, the Board generally does not take into account normal fluctua­tions in the respondent's work force arising out of the cyclical or seasonal nature of the particular business in which it is engaged: (see generally F. Lepper & Ltd., [1977] OLRB Rep. Dec. 846; United Parcel Service Canada Ltd., [1978] OLRB Rep. Feb. 172; Gabriel of Canada Limited, [1981] OLRB Rep. July 876; and, Marley Roof Tiles Limited, [1984] OLRB Rep. Mar. 511.) For a build up to warrant a deferred vote, then, the number of employees who will be added to the unit during the "build-up" must normally exceed the number employed on the date the application is made.

4. The respondent sought application of these "build-up" principles to its particular cir­cumstances. Those circumstances were the subject of testimony by Samuel McCullough, Vice-Pres­ident and General Manager of the respondent's Heating Products Division. He spoke of the respondent's having decided in mid to late 1987 to increase the volume and range of its heating products line, so as to become the number two manufacturer of such products by 1990. Mr. McCullough spoke in general terms of the steps taken to transform this goal into detailed business plans which affected both the subject plant and other plants operated by the respondent. With respect to the detailed business plan affecting the subject plant, Mr. McCullough spoke of the situ­ation as it existed when he testified on May 18, 1989.

5. Mr. McCullough identified the products in respect of which increased production was anticipated and gave the respondent's estimate of the number of additional persons required in each case as a result of the required increase in production. He said eleven further employees were needed to deal with increases in production needed to meet fresh customer commitments that had been obtained in pursuance of the company's business plan. Three additional employees were needed because of additional demand which a program of marketing in the United States was expected to create. Six additional employees were needed for the expansion of "B Vent" product and nine for production of chimney liner components. He added this total of twenty-nine addi­tional employees to the 1988 peak level of employment of fifty-eight persons to get a total of eighty-seven persons expected to be employed at the subject plant within six to nine months after the date of his testimony, 9 1/2 to 12 1/2 months after the application date. Less half that number -41 persons - were employed in the bargaining unit on the application date.

6. We do not propose to record here in detail the plans about which Mr. McCullough testi­fied. One feature of that testimony was that a significant portion of the increased production would be performed on a new, state-of-the-art machine which the respondent had committed to purchase for approximately three hundred thousand dollars. The machine is described in an engineering study addressed to the respondent and dated January 1988. Mr. McCullough testified that the com­mitment to purchase the machine had been made in the week prior to his testifying before the Board, some months after the application date.

7. Although the respondent bore the onus of establishing that it had a firm plan for build­up as of the application date, Mr. McCullough did not address the precise status of the respondent's planning as of that date. While Mr. McCullough's evidence supports the conclusion that a plan of the sort he described had been under active consideration at that time, there was insufficient evi­dence to persuade us that there had been a firm commitment to such a plan at the time the applica­tion was filed. That alone was a sufficient basis for the decision we made in this regard.

8. There was another reason not to treat this as a "build-up" which should result in our directing a representation vote: the contemplated "build-up" was not of the magnitude which ordi­narily leads the Board to order and defer a vote. On Mr. McCullough's own evidence, the build-up was to create twenty-nine further jobs. He acknowledged that there was a seasonal fluctuation in sales of the products produced at the plant. While variations in rate of production were less radical than fluctuations in sales, as a result of production for inventory during slow months and sale for inventory during busy months, he acknowledged that there was a seasonal fluctuation in employ­ment levels at the plant from a minimum in the winter months to a maximum in the late summer and early fall months. No specific explanation was given for the difference between the number employed in the bargaining unit on the application date and the 1988 peak employment figure Mr. McCullough used in calculating anticipated total employment following the "build-up". The most reasonable inference which may be drawn is that the difference reflects a seasonal fluctuation which Mr. McCullough expected to repeat in 1989.

9. As we have already noted, seasonal fluctuations are ordinarily ignored in assessing a claim that a planned build-up warrants directing a deferred vote. Build-up principles ordinarily apply only when the number of new jobs resulting from the build-up is expected to exceed the number of existing jobs. That is not so here, where the number of new jobs is 29 and the number of existing jobs is 41. The planned build-up was not of sufficient magnitude to warrant a deferred vote, even if the plan for it had been firm as at the application date.

Allegations of misconduct by union organizers

10. On January 26, 1989, seven employees of 05W at its Nobel plant met with Wes Dowsett, a full time representative of the union. They wanted the union to organize the Nobel plant. Mr. Dowsett explained what would be involved. He said he had other commitments which would prevent him from being actively involved in organizing the plant at that time. He instructed them on the procedure they could follow to organize the plant themselves by obtaining the membership evidence necessary to support an application for certification. Between January 26 and January 30, 1989, members of this employee organizing committee obtained written applications for member­ship from thirty-seven individuals. Thirty-six of those were employed in the bargaining unit on Jan­uary 31, 1989 when this application for certification was filed. Those applications and one other membership application obtained on January 31, 1989 constitute the membership evidence on which the union relied in its application for certification. As we noted earlier, forty-one individuals were employed in the bargaining unit on the date of application.

11. Calven Hefferton was one of the seven employees on the organizing committee. The respondent alleges that when Mr. Hefferton approached fellow employee Glenn Doherty on Feb­ruary 12, 1989 to solicit a membership application, he told Mr. Doherty that another employee, Tim Dixon, had already joined. The respondent says that Tim Dixon is a senior employee who is particularly well regarded by the work force and that the representation that he had joined the union was false when made, to the knowledge of Mr. Hefferton. Mr. Doherty testified that the approach and representation were made. He also testified that he had the opportunity to and did question Tim Dixon about whether he supported the union before making any decision about sign­ing an application for membership himself. Mr. Hefferton admits approaching Mr. Doherty, but denies telling him that Tim Dixon had signed a card.

12. The respondent says Mr. Hefferton tried to get fellow employee Fred Dehnicke to join the applicant by offering to give him a free pass to the Canada's Wonderland Amusement Park if he would do so. All of the witnesses who spoke to this issue agree on these facts: one Friday at the end of the shift, as workers were lined up at the punch clock to punch out, Mr.Hefferton offered Mr. Dehnicke a free pass to Canada's Wonderland if he would join the union, but Mr. Dehnicke declined to join. Mr. Hefferton says the offer was a joke, that he did not seriously expect that Mr. Dehnicke would join the union. Several of the union's witnesses say that the other assembled employees responded with laughter when Mr. Hefferton made the "offer". Furthermore, it was the evidence of Mr. Hefferton and the other union witnesses that the Friday on which this incident occurred was the Friday following the terminal date, when no new membership evidence would have had any affect on the certification application. Mr. Dehnicke could not recall whether the Fri­day in question fell before or after the terminal date. Darrell Dexter claims Mr. Dehnicke told him of the incident on February 13th, the Monday prior to the terminal date. Mr. Dehnicke made no mention of a contemporaneous conversation with Mr. Dexter about this incident. He did say that he reported the incident to Frank Kennedy, a foreman in the employ of GSW, on the day it occurred. Mr. Kennedy was not called to testify as to the date on which the incident was reported to him. There was no suggestion that Mr. Kennedy was unavailable.

13. The respondent alleges that when Mr. Hefferton met with Dennis Dumonte on January

31, 1989, he told Mr. Dumonte that the sole purpose of signing a card was to get a vote. Mr. Dumonte testified to that effect and said that another member of the organizing committee, Sam Lacosse, told him not to worry about having signed a card, that he could express his true feelings in an election. Mr. Hefferton's discussion with Mr. Dumonte occurred at the end of January, when it would have seemed clear to him that the union already had more than enough support for outright certification. Mr. Hefferton denies telling Mr. Dumonte that the sole purpose of his signing a card would be to get a vote. Mr. Lacosse does not believe he told Mr. Dumonte that he could express his feelings in an election.

14. Greg Stephens was another of the members of the organizing committee. The respon­dent alleges that Mr. Stephens threatened Glen Doherty's job during the organizing campaign. Mr. Doherty says Mr. Stephens told him that if the union got in he personally and his job would be "threatened and straightened out." Mr. Doherty also testified about an incident in early March 1989, when Mr. Stephens told him to keep his mouth shut or be slapped on the side of the head. Mr. Doherty's job involves setting up machines, including a machine or machines operated by Mr. Stephens. This has resulted in conflict between Mr. Stephens and Mr. Doherty, conflict which began well before the organizing campaign did. It is apparent that Mr. Stephens did make some comment to Mr. Doherty to the effect that once the union got in, his (Stephens') concerns about how Mr. Doherty's work affected him could be dealt with. It is also apparent, as the respondent alleges, that Mr. Stephens raised his voice to Mr. Doherty during a discussion about why Mr. Doherty would oppose the trade union when he was planning to quit within the next couple of days, as Mr. Doherty concedes everyone thought at the time. When he told Mr. Doherty that his job would be straightened out when the union came in, Mr. Stephens did not say that this "straightening out" could be avoided if Mr. Doherty joined the union, nor does Mr. Doherty claim to have taken the threat in that way. The threat itself was not likely to induce in Mr. Doherty a desire to join or otherwise support the union. The respondent alleged that Bruce Hines similarly "threatened" Mr. Doherty's job. Not even Mr. Doherty's evidence supported that allegation.

15. It is clear that on Friday, March 10, 1989, Mr. Stephens told Mr. Doherty to keep his mouth shut or he would slap him in the side of the head. It is also clear that this happened after Mr. Doherty saw Mr. Stephens riding on the back of a forklift, and that the threat was intended by Stephens and understood by Doherty to relate to the possibility of Doherty's reporting this viola­tion of safety rules to management. The threat had nothing to do with the participation of either of them in these proceedings.

16. The respondent alleges that other employees' jobs were threatened by the organizing committee. Tim Dixon testified that he overheard Greg Stephens tell another employee, Phil Newell, that the union would make things rough on employees who did not sign cards. Both Mr. Stephens and Mr. Newell deny having any such conversation. Mr. Dixon testified that another of the employee organizers, Rick Eldridge, told him that the union was attempting to oust Darryl Dexter from his job. Mr. Eldridge's version of this conversation is that he told Mr. Dixon of having heard that if the union got in, Darryl would not have his maintenance job. Mr. Eldridge testified that he had heard employees say Mr. Dexter was not qualified for his maintenance job. It seems to have been thought that the arrival of the union on the scene would bring an end to the use of unqualified people in skilled jobs.

17. Like the tension between Mr. Stephens and Mr. Doherty, employee debate and con­cern about Mr. Dexter's lack of formal trade qualifications began well before the union s organiz­ing campaign. There is no suggestion that the organizers told anyone that the additional jeopardy to Mr. Dexter's job associated with the union's coming in could be avoided if Mr. Dexter joined the union, nor does Mr. Dixon claim to have understood the remarks that way. Again, the job "threat"~ if it was one, was not tied to support for or opposition to the trade union.

18. Notice of the certification application was posted in the workplace on February 9, 1989. On February 10, 1989, Darryl Dexter began collecting signatures on a document ("the petition") expressing opposition to certification of the applicant. Before lunch that day. Bruce Hines came into Mr. Dexter's office and asked to see the petition. Mr. Dexter said he could not see it unless he was willing to sign it. Mr. Hines retorted that Mr. Dexter could not refuse to let an employee see the petition. Mr. Dexter responded that he knew Mr. Hines was pro-union and said he had a right to keep the petition confidential. Mr. Hines did not get to see the petition. His parting remark was to the effect that Mr. Dexter had better know what he was doing, that he was going to need a law­yer because "we are going to take you to court".

19, Mr. Dexter says that after Mr. Hines left, he telephoned the Board and was put through to one of the Registrar's assistants. He says she verified to him that he did not have to show Mr. Hines the petition.

20. Mr. Dexter says Mr. Hefferton came into his (Mr. Dexter's) office about 10 minutes after Mr. Hines' visit and asserted a right to see the petition. Mr. Dexter said he had spoken to the Registrar about that and did not have to show the petition. According to Mr. Dexter, Mr. Heifer-ton then told Mr. Dexter that he had better know what he was doing and that he would need a law­yer. Mr. Dexter again telephoned the Board and spoke to one of the Registrar's assistants about whether he would need a lawyer and whether he could lose his job as a result of taking time off work to present his petition at the Board's hearings in the certification application. He says he was assured that he did not need a lawyer.

21. Sam Lacosse was the next member of the employee organizing committee to visit Mr. Dexter in his office that day. He persuaded Mr. Dexter to show him the petition by suggesting he might sign it. He examined the signatures on it, then left Mr. Dexter's office without signing it. Mr. Dexter says that within a short time thereafter petition signers told him they were being threatened by union supporters with court and court costs and told that anyone whose name was on the peti­tion would be summonsed to court.

22. Tim Dixon and Bruce Hines both testified that Mr. Hines approached Mr. Dixon and asked him why he had signed the petition, in view of remarks he had made about the employer on an earlier occasion. Mr. Dixon says Mr. Hines used an angry, aggressive tone during this discus­sion. He does not say he was threatened with court and court costs.

23. Dennis Dumonte signed the petition on Friday, February 10th. Mr. Hines learned of this after Mr. Lacosse got to see the petition. Mr. Hines caught Mr. Dumonte's eye and gestured to him, rubbing his thumb against his index and middle fingers in a motion suggestive of money. When Mr. Dumonte asked what the gesture meant, Mr. Hines told him he would have to go to "court" about the petition, which would cost him money because he would have to take time off work. Mr. Dumonte got worried about going to "court". When he discussed this with Mr. Lacosse, Mr. Lacosse said the only way around going to "court" was to sign a counter-petition. On Febru­ary 13th, the next working day, Mr. Hefferton told Mr. Dumonte unconditionally that he would not be summonsed by the union as a witness. Mr. Dumonte thereafter signed a counter-petition which the union filed by mail on the terminal date.

24. Mr. Dexter says Mr. Hefferton approached him a second time on February 10th with respect to the petition. Mr. Hefferton accused him of making an untrue statement to another employee, Rhonda Ray, about the number of petition signatures he needed in order to get a vote. According to Mr. Dexter, Mr. Hefferton told him that what he was doing was illegal, that he would need a lawyer and that all this would cost him money. Mr. Hefferton admits commenting about the legality of what he felt was Mr. Dexter's misrepresentation to Rhonda Ray, but denies telling Mr. Dexter that he needed a lawyer.

25. On Mr. Hines' evidence, his visit to Mr. Dexter would have taken place after Mr. Hef­ferton's first visit. He acknowledges saying "I'll see you in court" and that Mr. Dexter had better have a lawyer. He says Mr. Dexter replied "She says I don't need one".

26. Mr. Dexter collected six signatures on his petition on February 10th. He testified that he decided not to solicit more signatures after learning that those who had signed it were being harassed by union supporters. His evidence, however, is that he brought the document with him to work the following Monday. While Mr. Dexter had it at the workplace that day another employee signed it then, a few minutes later, returned to cross his name out because he had changed his mind. Mr. Dexter also went into town that Monday and got another employee's signature on the petition. We concluded from his evidence that he mailed the petition to the Board that day because he mistakenly thought that was the deadline for mailing such documents to the Board.

27. The employer argued that misconduct by members of the employee organizing commit­tee made the union's membership evidence unreliable as a basis for certification without a vote. It also argued that their interference with the circulation of a petition should lead the Board to exer­cise its discretion under subsection 7(2) of the Act in favour of conducting a representation vote.

28. We begin our assessment of these claims by observing that thirty-six of the thirty-seven cards on which the union relies were signed in a four day period which began on January 26 and ended on January 30, 1989. There is no direct evidence of any impropriety in connection with the collection or solicitation of any of those cards. The respondent relies entirely on events alleged to have occurred subsequent to that period. Even if the members of the employee organizing commit­tee did all of the things they are accused of, that would be no reason to doubt that the thirty-six cards obtained prior to January 31st reflected the true wishes of the signatories at the time they signed them unless we were also to infer, from the evidence we have heard, that similar improprie­ties must have occurred on a significant scale prior to that date. In assessing this possibility, we are asked to take into account evidence the employer led in support of the proposition that the appli­cant trade union had a reputation for violence in the Parry Sound community.

29. The evidence on this latter point was that various of the witnesses had in times past heard, through rumours or media reports, of incidents of violence which occurred during strikes at plants represented by the applicant. In our view, none of the stories related by the witnesses would necessarily have led a reasonable person to suppose that the applicant was responsible for or con­doned any of those incidents, nor could it necessarily have engendered a belief that the applicant or its representatives would resort to violence in order to get its way in an organizing campaign. Indeed, none of the witnesses suggested that they believed the applicant union would resort to vio­lence in order to obtain membership evidence. What some of them did say was that members of the employee organizing committee were loud and aggressive by nature and seemed to the wit­nesses to have a potential for violence. The evidence does not persuade us, however, that any employee might have signed an application for membership out of fear that his or her personal safety or job security would be in jeopardy from the union or its supporters if he or she did not sign. We do not accept the testimony of Mr. Dixon that he overheard Mr. Stephens tell Mr. Newell that the union would make things rough on employees who did not sign cards. With the exception of that alleged conversation, there is no allegation that any employee was threatened with physical or economic reprisal if he or she did not join the union. The most probable explanation for the speed with which the union collected cards from nearly ninety per cent of the employees in the bar­gaining unit is that there was a strong appetite for union representation and collective bargaining among those employees at the time they were approached.

30. Messrs. Doherty, Dumonte, Dehnicke, Dixon and Dexter were among those whom the employee organizers thought least likely to support union representation. The organizers had been instructed by Wes Dowsett to stay away from those likely to oppose the union, so as to avoid a confrontation. None of them was approached until the union had applications for membership from nearly all of the other employees. We are not persuaded that whatever took place in dealings between those five employees and the members of the organizing committee would have been characteristic of the dealings which had taken place earlier with other employees.

31. In Carleton University, (1975] OLRB Rep. April 308, the Board found that a letter which had been widely circulated by the applicant trade union among the employees from whom it was soliciting cards might have led those employees to believe that there would be a representation vote in any event before the applicant was certified. In those circumstances, the Board exercised its discretion under subsection 7(2) to conduct a representation vote even though the applicant had submitted evidence that more than fifty-five per cent of those employed in the bargaining unit had applied for membership by the relevant date. There is no evidence that before January 31, 1989 anyone was told that there would be a representation vote in any event. Bearing in mind that the organizing committee had collected cards from over eighty per cent of those in the bargaining unit before Mr. Hefferton had his conversation with Mr. Dumonte on January 31, 1989, we do not believe Mr. Hefferton would have told Mr. Dumonte that his signing a card would lead to a repre­sentation vote.

32. We do not believe Mr. Hefferton represented that Tim Dixon had already joined the union when on February 12, 1989 he asked Mr. Doherty whether he wished to join. Mr. Doherty's support was not needed. There would have been no reason for Mr. Hefferton to say anything about whether Mr. Dixon had joined. Even if he had, that would not lead us to discount the mem­bership evidence before us. The Board does not ordinarily concern itself with the social pressures employed by a union's supporters and opponents during an organizing campaign, so long as those pressures do not amount to intimidation or coercion or otherwise interfere with the ability of employees to make their own decision. The truth or otherwise of representations made as part of either side's sales pitch is not a matter of particular concern when the representations relate to matters about which employees are able to ask their own questions and form their own judge­ments. Here, the alleged representation was something Mr. Doherty was able to and did in fact check out himself.

33. With respect to the transaction between Mr. Hefferton and Mr. Dehnicke, we are per­suaded on a balance of probabilities that it occurred on the Friday following the terminal date. Whether it occurred then or on the previous Friday, however, the critical question is whether we believe that Mr. Hefferton (or any other organizer, for that matter) used bribery to collect any of the membership evidence on which the trade union relies in support of its application for certifica­tion. We are not persuaded that he (or any of them) did. We accept his evidence that the transac­tion with Mr. Dehnicke was a joke and that neither he nor any on-looker would have imagined that Mr. Dehnicke would join the union in order to get a free pass to Wonderland.

34. Before turning to the question whether the alleged interference with the petition war­rants directing a representation vote, we are bound to observe that a conclusion that organizers interfered with the circulation of the subsequent petition would not itself logically support the proposition that there had been impropriety in the earlier solicitation of membership evidence. We were satisfied that the membership evidence submitted by the trade union demonstrated that the employees signatories wished to be represented by the trade union at the time they signed the applications.

35. The role of statements in opposition to certification --"petitions" as they are generally called -- is described in Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 at para­graph 15 and following. Rather than quote at length from that or any other Board decision, we think it would be more appropriate to the purpose of this analysis to set out here what the Board tells employees about "petitions." In any certification application in which there is a possibility of certification without a vote, the Notice to Employees of the application for certification (Form 78 in the Construction Industry, Form 6 otherwise) includes the following information:

4.--(i) The Board will not hear evidence or representations of employees objecting to certifica­tion of the applicant unless one or more documents, sometimes referred to as petitions, express­ing objection to the certification of the applicant are filed with the Board.

(2) A document referred to in subsection (1),

(a) must be signed by the objecting employee or employees;

(b) must be,

(i) received by the terminal date if sent other than by registered mail, or

(ii) mailed to the Board by the terminal date shown in paragraph 3 if sent by registered mail; and

(c) must be accompanied by the name of the employer concerned and the return mailing address of the employee or employees filing the document or of the representative of the employee or employees.

(3) The objecting employee or employees or a representative of the objecting employee or employees MUST ATTEND THE BOARD'S HEARING AND PRODUCE A WITNESS OR WITNESSES who, from personal knowledge and observation, can describe the circumstances in which each document was prepared, circulated and signed, and verify each signature.

No oral evidence of employee objection to certification of the applicant will be accepted by the Board except to identify and substantiate written evidence which complies with these requirements.

In addition to the posting of a Notice of Application in the appropriate form, the Registrar also directs the posting of another Notice to Employees which informs employees about their rights under the Labour Relations Act generally and the nature of a certification application in particular. The following portions of that poster-sized Notice ("the poster") refer directly to "petitions" and their role in the certification process:

What percentage of the employees in the bargaining unit must belong to the trade union for it to be certified?

Generally, if less than 45 percent of the employees in the unit are members of the trade union, the Board will dismiss the application. If more than 55 per cent of the employees are trade union members, then the Board will usually certify the trade union without a representation vote. If between 45 and 55 per cent of the employees have joined the trade union, the Board must conduct a representation vote. The Board will then certify the trade union only if more than half of the ballots cast are marked in favour of the trade union.

There are three important exceptions to these rules:

Thirdly, the Board has a discretion to order a representation vote where it is satisfied that a doc­ument opposing the certification of the trade union is received by the Board by the terminal date or mailed to it by registered mail by that date and is signed voluntarily by a sufficient number of employees so as to raise a doubt whether the union continues to have the unqualified sup­port of more than 55 per cent of the employees in the bargaining unit.

Example: There are 100 employees in the unit determined by the Board to be appropriate. The union files 60 valid membership cards by the terminal date. The union would generally need 56 to be certified without a vote. A document opposing the union signed by 30 employees is filed by the terminal date. The Board will determine if any of the 30 employees opposing the union had previously signed membership cards, as this would indicate that they may have changed their minds. If none of the 60 original supporters had signed the document opposing the union then those 60 still want the union. Thus since more than 55 per cent still want the union, the Board would generally certify without a vote. But if 20 employees who originally signed mem­bership cards have also signed the document opposing the union, then only 40 would clearly still support the union (i.e. 40%).

Provided the Board was satisfied that the documents opposing the union were voluntarily signed, it would generally order a vote, because there would be some doubt that over 55% of the employees continue to want the union to represent them.

Can an employer suggest that employees file a document opposing the union or assist in its preparation?

The Board will disregard any such document that is not clearly a voluntary expression of the signing employee or employees and is not entirely tree from actual or perceived employer influ­ence.

Documents recording employee opposition to certification of a union are often referred to as "petitions" in proceedings before the Board. There is no standard form. Whatever form the document takes, it must be signed by the employee or group of employees concerned. As a min­imum, the document must name the employer and union involved and state clearly that the employee or employees who have signed it are opposed to the applicant union being certified.

How do you prove that a document opposing the union does not have management support?

If documents opposing the union contain a sufficient number of signatures of persons who also signed union cards that it may prompt the Board to hold a vote, the Board will call upon the objecting employees to prove that the signatures on the document were voluntary.

A representative of the signing employees must appear and call witnesses to testify under oath about how the document opposing the union originated (whose idea it was who drafted it and where) and about the manner in which each of the signatures was obtained. This means that evi­dence must be given about the circumstances under which each employee signed the document by someone who was present at the time. Through all this, the Board makes certain that the names of the employees on the document are not revealed to the employer or the union. Refer­ence is made only to a number placed beside each of the signatures by the Board. The persons who present the evidence at the hearing will be questioned by the Board and may be questioned by the representatives of the union and the employer. If at the end of the enquiry the Board is not satisfied that the signatures on the document were voluntary expressions of the employees who signed, the document will be disregarded.

[the first sentence of the last paragraph appears in italics in the original]

36. As these portions of the poster indicate, a petition in opposition to certification of an applicant trade union will only affect the outcome of that application if it has been voluntarily signed by a numerically relevant number of employees on whose earlier applications for member­ship the applicant trade union relies. A written expression of opposition to its certification by an employee who has recently applied for membership in a trade union represents what some of the decisions refer to as a "sudden change of heart". Its voluntariness may be put in doubt if, as hap­pens from time to time, their employer has brought pressure on the employees after learning of the application or if, as also happens from time to time, those circulating the petition have done so in a manner which suggests to employees that the employer will learn the identities of those who do and do not sign. The voluntariness of a petition is ordinarily the subject of careful scrutiny in a cer­tification application. As both the formal Notice of Application and accompanying poster indicate, those who would have the Board give weight to a petition are obliged to participate personally or by a representative at the hearing of the application, and they must ensure that there are witnesses in attendance at the hearing who can attest from personal knowledge as to the circumstances of origination and circulation of the petition document. Neither these opponents nor any other party to the application is obliged to retain and be represented by a lawyer. Given the adversarial and sometimes complex nature of certification proceedings, the parties to them, including objecting employees, are often represented by lawyers.

37. Counsel for the respondent relies on the Board's decision in St. Michael Shops of Canada Limited, [1979] OLRB Rep. Apr. 346. That was a certification application in which the applicant trade union filed membership evidence with respect to more than 55 per cent of those in the bargaining unit. The employer argued that the Board should nevertheless conduct a represen­tation vote because intimidation was used to prevent the circulation of a petition in opposition to the applicant. In issue was the behaviour of one Provencal, husband of the union's chief employee organizer, toward Pat Newton, an employee who had begun to circulate a petition in opposition to the application at the time of the incident in question. The following portion of the Board's deci­sion describes the incident and the Board's reaction to it:

38. Provencal confronted Newton at her place of work. The evidence accepted by the Board establishes that Provencal told Newton that if she continued to circulate the petition she would get into big trouble. He said that if she wanted trouble she would get it. Provencal admitted that he spoke to Newton in an angry tone of voice and that he intended to frighten her into ceasing her efforts in opposition to the trade union. He was evidently successful in doing so. The Board accepts Newton's testimony that after Provencal left she ripped up the petition because she was scared.

39. Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611 and Du Pont of Canada Limited, [1960] OLRB Rep. Jan. 361 are two cases where the Board has dealt with allegations of wrongful activity aimed at interrupting the circulation of a petition. In both cases the Board dismissed the complaints and certified the union on the grounds that the acts complained of were not of a such a nature as to prevent through intimidation the subsequent circulation of the petitions. In Kendall Company (Canada) Limited the circulator was at the company gates openly circulating another petition the day after his original petition was ripped up by an employee collector. The circulator was so far from being intimidated that on the following day he sought to provoke an incident in front of two employees with whom he was talking. In flu Pont the Board was satisfied that the employees ceased circulating their petitions because of the union organizer's suggestion that the petitions might ultimately jeopardize the jobs of some of their fellow employees and not because of any acts of intimidation directed against them. The Board emphasized that it was not intended to act as a censor of mere social pressures exerted either for or against a union.

40. Unlike the incidents in Kendall and flu Pont, the activities of Conrad Provencal, by his own admission, were designed to intimidate Newton and scare her into destroying the petition. Whether or not these tactics constitute a violation of section 61 of the Act is not determinative of the matter. Under The Labour Relations Act employees are given an opportunity to state their opposition to a union's application for certification by filing a petition with the Board. A petition which meets the requirements of timeliness and form set out in Rule 48, displays suffi­cient overlap with the membership evidence and is found to be a voluntary statement of desire may leave the Board in doubt as to the true intentions of the membership evidence submitted to the Board, the Board exercises its discretion under section 7(2) of the Act and orders a repre­sentation vote to ascertain the true wishes of the employees.

41. In this case, Provencal's effective scare tactics which interrupted the circulation of the peti­tion clearly exceed the bounds of acceptable pressure. Although Provencal was not a member of the applicant union he was the husband of the key employee organizer. Moreover, he was him­self recognized as an active and effective participant in the organizing campaign as evidenced by the fact that Lafond as well as his wife called upon him to deal with the Newton petition. In view of his role in the initiation of the organizing campaign, his position as a union steward and an out­sider, his confrontation with Newton cannot be brushed aside as an isolated incident of a hot­head. His actions deprived employees of an opportunity to express their wishes to the Board through the Newton petition. Having regard to all the circumstances of this case and the means by which the petition was interrupted, the Board finds that it is left in doubt as to whether the membership evidence filed was, as of the terminal date, an accurate expression of the wishes of the employees. To resolve that doubt the Board hereby orders the taking of a representation vote among the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

42. As appears from this passage, the panel which decided St. Michael Shops considered whether the behaviour complained of actually interrupted the circulation of the petition. Having concluded that it did interrupt the circulation of the petition, the Board considered whether the behaviour in question exceeded the bounds of "acceptable pressure". In that connection, it consid­ered whether the behaviour in question was "designed to intimidate" the person circulating the petition into ceasing that activity.

43. Darrell Dexter was the petition circulator in this case. The alleged improper behaviour toward him was that of Messrs. Hefferton and Hines in asserting to him that he would be going to court, that he would need a lawyer and that all this would cost him money. It is apparent that this Board is the "court" to which they were referring and that that is what Mr. Dexter understood them to mean: he responded to their assertions by telephoning the Board to find out whether he needed to have a lawyer at the hearing of the certification application. He was told he did not, Mr. Dexter had to attend the hearing or hearings if he wished his signature collecting activity to be of any use in opposing the union: he and all of the other employees would have known that from reading the Board Notices posted in the workplace. The need to attend a hearing and the financial implications of doing so were necessary consequences of Mr. Dexter's decision to oppose the union.

44. The comments made by Messrs. Hefferton and Hines were not threats to institute other litigation against Mr. Dexter in retaliation for his pursuing his rights, nor were they threats to abuse the courts' or this Board's process in order to create artificial barriers or costs to the asser­tion by Mr. Dexter of his rights. On their face, these were assertions about the consequence of Mr. Dexter's intention (which they were entitled to assume he had) to participate in the hearing of the certification application and oppose the union's application. To the extent they misstated those consequences, by saying that Mr. Dexter had to have a lawyer, Mr. Dexter knew otherwise. Most importantly, Mr. Dexter was not deterred by these statements from continuing to circulate the petition. Despite his assertions that he was deterred, the fact show that he did continue to circulate the petition.

45. During the hearing of evidence in these matters, counsel for the respondent took the position that the effect on Messrs. Dexter and Dumonte of their conversations with Messrs. Hines and Hefferton was the only matter we should take into consideration in assessing the appropriate response to those events. During her examination in chief of Mr. Hines, counsel for the union asked him why he told Mr. Dumonte that he might have to go to court. Counsel for the respondent objected to this question, on the ground that Mr. Hines' state of mind was irrelevant. During argu­ment on that objection, we observed that there had not yet been any suggestion that Mr. Hines acted out of any inappropriate motive. We told counsel for the union that we thought it inappro­priate to anticipate such an attack on the witnesses' motivation before it had been made. We neither accepted or rejected the respondent's assertion that motivation was not a relevant consider­ation. Counsel for the union did not question Mr. Hines further in chief about the motivation behind his discussion with Mr. Dumonte. When counsel for the respondent objected to her asking him about his motivation in telling Mr. Dexter that he needed a lawyer, she withdrew the question. Counsel for the respondent did not cross-examine Mr. Hines with respect to his motivation in speaking to Messrs. Dumonte and Dexter as he did. In all the circumstances, we are entitled to assume that when Mr. Hines told Mr. Dumonte that he might have to be a witness he believed that there might be a real need to call Mr. Dumonte as a witness.

46. The Board ordered a vote in St. Michael Shops because the improper conduct of some­one closely connected with the union's organizing campaign had interrupted the circulation of a petition, with the result that the Board was left in doubt about employee wishes as of the terminal date. There, the petition was interrupted by intimidation of the petition circulator. Another way a petition could be interrupted is by intimidating potential signers of it, particularly those whose sig­nature on the petition would be significant because they had previously signed a membership appli­cation. Although we concluded that the petition circulator here had not been improperly deterred from circulating his petition, we had to consider whether other potential petition signers would have been improperly deterred from expressing their wishes by that means as a result of the behav­iour of the union organizers toward Messrs. Dexter, Dumonte and other petition signers.

47. The first observation which should be made in this connection is that the organizers made themselves vulnerable to this charge by their heavy handed and successful efforts to find out who had signed Mr. Dexter's petition. To the extent they became aware of the organizers' determi­nation to get that information, signers and potential signers would have been concerned about the use to which organizers might put that information. Once the union organizers knew who had signed the petition, the content of any subsequent discussion between an organizer and a petition signer was something about which any potential signer would be sensitive. If such a conversation included a suggestion of physical violence or even unspecified "big trouble", that would be a mat­ter of concern to the Board. The Board might direct a vote if it were satisfied that such a conversa­tion was likely to have come to the attention of a significant number of potential petition signers. We are satisfied that in this case there were no express or implied threats of physical violence or of unspecified "trouble".

48. One or two of the signers were asked why they were opposing the union when it did not appear they had a continuing interest in the workplace. That kind of conversation falls well within the range of permissible "social pressure". The conversation which Mr. Hefferton acknowledges having had with Mr. Dexter involved the assertion by Mr. Hefferton that certain actions of Mr. Dexter's were illegal or improper. Without denying the possibility that assertions of that type may in some circumstances go beyond the bounds of acceptable social pressures, we concluded that this conversation did not.

49. We are satisfied that Mr. Hines' assertion to Mr. Dexter that he would be going to court and would need a lawyer was a statement of Mr. Hines' belief about what Mr. Dexter would have to do if he persisted in his plan to oppose certification at the hearing of the union's application. He made no suggestion that the need for a lawyer, the cost of the lawyer or the loss of wages which might flow from having to attend the hearing were anything other than the necessary consequences of Mr. Dexter's having decided to oppose the union. There was no suggestion, for example, that the union would drag out the hearing so as to artificially increase the cost to Mr. Dexter of his opposition. There was no suggestion that the union would make any sort of vexatious claim in the proceedings or initiate any other vexatious proceedings so as to artificially inflate the cost to Mr. Dexter of his opposition to the union. In the circumstances, we do not find that conversation to have exceeded acceptable bounds. The same would apply to the other conversation between Mr. Dexter and Mr. Hefferton, if it occurred as alleged by Mr. Dexter. It is unnecessary for us to con­sider whether these conversations were likely to have come to the attention of potential petition signers, as we could not be concerned even if they had.

50. When the voluntariness of a petition is in issue, trade unions not infrequently call employees who were approached to sign the petition to testify as to the circumstances in which that occurred. Mr. Dumonte was a person who had been approached to sign a petition. The evidence before us is that Mr. Dexter obtained his petition signatures during working hours in his office in the plant, which office is next door to the office of a member of management. In those circum­stances, and bearing in mind that there was no attack on Mr. Hines' motivation in telling Mr. Dumont that he would have to be a witness, we should deal with that conversation on the footing that Mr. Hines had a genuine belief that there was some good reason why the union might want to call Mr. Dumonte as a witness. We are not satisfied that Mr. Hines told Mr. Dumont he would need a lawyer. While it does concern us that Mr. Hines coupled his observations about Mr. Dumonte's being a potential witness with the possible cost to Mr. Dumonte of being called, Mr. Hines did nothing to suggest that the union's ability to compel the attendance of employees as wit­nesses would be used for the purpose of imposing a financial penalty on anyone who opposed its application for certification. We would be very concerned if the threat of that sort of abuse of this Board's process formed any part of pressure brought by union organizers on potential petition signers. The respondent did not suggest that that was Mr. Hines' intended message. It put its argu­ment entirely on the basis that the mere assertion that Mr. Dumonte might have to go to a hearing and suffer an associated financial cost would have a deterrent effect and that this deterrent effect was enough to warrant our conducting a vote even in the absence of a numerically relevant peti­tion. If the Board took that approach the ability of a trade union to investigate and call witnesses with respect to the issue of the voluntariness of a petition would be unduly restricted.

Allegations of Employer Wrongdoing

47. The union's complaint in File 2927-88-U alleged that on or about February 22, 1989, employees were summoned individually to meetings with a representative of the employer at which they were asked about their involvement in the union's organizing drive. The employer filed a detailed Reply, in which it acknowledged that on February 22 and 23, 1989, employees at the Nobel plant were asked to speak to Mr. John McGlinchey, who is described as "Counsel for the Respondent." It claimed it had been informed of union misconduct in connection with the organiz­ing drive and that Mr. McGlinchey's investigation had been undertaken in order to ascertain whether and to what extent such misconduct had occurred. It said that each interviewee had been advised that the interview was voluntary and that nothing he said would affect his job or result in "reprisals." The respondent alleged that no employee was asked about his or her involvement in the union's organizing drive.

48. The allegation in the union's complaint is one in respect of which subsection 89(5) of the Act imposes a reverse onus or burden of persuasion on the employer. The Board's standard prac­tice at the hearing of a complaint to which subsection 89(5) applies is to have the respondent pro­ceed first to adduce its evidence with respect to the matters in issue: see Practice Note No. 1, para­graph 7. The outstanding issues in the certification application and the issues raised by the employer's section 89 complaint where also issues in respect of which the employer would have been expected to proceed first.

49. When the hearing of these matters began, the trade union sought to add John McGlin­chey and John Roberts as respondents to its section 89 complaint, alleging that each was a "person acting on behalf of an employer" when he questioned employees with respect to their participation in the organizing campaign, so that that behaviour should result in their being liable together with their employer for breaches of sections 64, 66(a), 66(c) and 70 of the Act. Bearing in mind the late­ness of notice of this request and the fact that subsection 89(5) applies to employers but not to per­sons acting on behalf of an employer, we advised counsel for the trade union that if the amend­ment were granted we would require the trade union to proceed first with respect to the subject matter of its complaint, but that if the employer remained the only respondent to that complaint it would be required to proceed first with respect to all of the matters in issue, including those raised by the union's complaint. After consideration, counsel for the trade union withdrew the request to add Messrs. McGlinchey and Roberts as respondents to its complaint. In the result, the respondent was clearly on notice that its case-in-chief would have to include any evidence it wished to put before the Board in support of the proposition that no employee had been questioned by Mr. McGlinchey or Mr. Roberts about his or her involvement in the union's organizing drive.

50. Except for Mr. McCullough, whose testimony was restricted to matters relevant to the "build-up" issue, the witnesses called by the employer during its case-in-chief were all employees in the bargaining unit. One of those employees was questioned about what had taken place when he was interviewed on February 22nd or 23rd. The witness answered that he had not been ques­tioned about whether he had joined the union, attended union meetings or supported the union in any way. The employer completed its case-in-chief without having called either Mr. McGlinchey or Mr. Roberts as a witness.

51. Two of the union's witnesses testified about having been interviewed by Mr. Roberts and Mr. McGlinchey. Rick Eldridge said he had been asked to go upstairs in the plant, where he met Mr. Roberts. After telling Mr. Eldridge he did not have to answer, Mr. Roberts asked him whether he had attended a union meeting or been asked to attend a union meeting. He also asked Mr. Eldridge whether he had signed a union card. Mr. Eldridge did not answer those questions. Mr. McGlinchey then joined them. The questions he asked Mr. Eldridge included those asked ear­lier by Mr. Roberts: whether he had attended a union meeting, whether he had been asked to attend a union meeting and whether he had signed a union card. Mr. Eldridge answered "no" to all of these questions. At the end of the interview he was presented with and asked to sign a docu­ment stating that before being interviewed by Mr. McGlinchey he had been told that, among other things, his answers to Mr. McGlinchey's questions would not affect his job, that "regardless of my answers or what I said, there would be no reprisals" and that "my participation in the interview was strictly voluntary, and I was informed that I could decline to answer any questions and could leave at any time." Mr. Eldridge signed this document. He did not remember being told that his answers would not affect his job or that there would be no reprisals. He did recall having been told that his participation in the interview was voluntary and that he could decline to answer any ques­tion. He signed the document because he was nervous and wanted to get out of the meeting as quickly as possible.

52. John MacDonald also testified about being interviewed. He was told to go upstairs. When he did so, he found Mr. Roberts, who took him into a room with Mr. McGlinchey. Mr. McGlinchey asked several questions. Among them were whether he had been approached to sign a union card and whether he had in fact signed a union card. Mr. MacDonald was asked to and did sign a document in the same form as the one signed by Mr. Eldridge. Mr. MacDonald did recall being told that anything he said would not be used against him.

53. The employer called Mr. Roberts as a reply witness. Counsel for the union objected when counsel for the employer asked Mr. Roberts if he had asked Mr. Eldridge whether he had attended a union meeting. Counsel for the union argued that the employer was splitting the case which it ought to have presented in chief. Counsel for the employer argued that this was simply a reply to the evidence of Eldridge about what he had been asked. We gave the following oral ruling:

Our procedural direction was that the employer should present its evidence first with respect to all matters in issue, including the allegations put in issue by the trade union in its complaint. Those issues included the question whether Mr. McGlinchey or Mr. Roberts or both had asked employees indi­vidually about their activities in relation to the union organizing campaign. Those individuals were available to testify. After being so directed, there was no suggestion by the employer's counsel that in order to comply he needed to know which employees were allegedly so questioned.

The employer chose not to call Mr. Roberts or Mr. McGlinchey in chief, choosing to rely (counsel now explains) on the favourable evidence given during cross-examination of one of its employee witnesses as to the circum­stances of that employee's interview. In these circumstances, to now allow the employer to introduce evidence of Mr. Roberts in reply with respect to his conversations with one of the union witnesses on this issue would be to allow the employer to change the procedure which we determined at the out­set. The employer was to offer its evidence on the issue whether Mr. Roberts had asked any employee about his involvement in the union organizing cam­paign during its evidence in chief. To attempt to address any aspect of that question now is not in these circumstances proper reply.

We did not permit any further questioning of Mr. Roberts about whether he or Mr. McGlinchey had questioned Mr. Eldridge or Mr. MacDonald about their involvement in the union's organizing campaign.

54. The evidence before us established that two employees had been questioned by the respondent's agents about whether they had joined the union or participated in its activities. Sec­tion 111(1) of the Act protects trade union membership records from disclose. In a paper published in 1965, the then chairman of the Board made these observations in the course of his explanation of the reason for that section:

An important factor that must be taken into account in framing labour relations legislation is that employees are fearful, whether for good reason or otherwise, that if their employer sus­pects they are members of a trade union, he may discriminate against them in their employ­ment. Although there are prohibitions in The Labour Relations Act against such discrimination and although remedies are provided for cases in which discrimination is shown to exist, the fact remains that some em,players do from time to time engage in discrimination in so subtle a fash­ion that it is difficult, if not impossible, to obtain and present proof of it to the Board in a man­ner that will enable the Board to act on it. In these circumstances, to insist on full disclosure to an employer or to his representative of the names of employees who joined the union might well in practice render nugatory the freedom guaranteed by the Act to employees to join the trade union of their choice and, in proper circumstances, to have that union bargain on their behalf with their employer. The Legislature has therefore seen fit to lay down the general rule that membership evidence is not to be revealed to the parties opposed in interest to the trade union.

(J. Finkleman, the Labour Relations Act Board and Natural Justice (1965. Queen's University, Kingston) at p. 31). Those observations remain apt. The natural tendency of an employer's ques­tioning an employee about whether he or she has joined a trade union is to excite the fear referred to in this passage. Excitement of that fear inhibits employees' exercise of their statutory rights and interferes with the performance by trade unions of their representative function. If there are cir­cumstances in which such employer questioning has a valid purpose, they have not been demonstrated here; the questioners were not called to explain their actions. Having regard both to sub­section 89(5) of the Act and to the principle that a person must be taken to have intended the natu­ral consequences of his actions, we found that the respondent violated sections 64 and 66(c) of the Act. While this was not in all the circumstances the most heinous of violations, it was a violation nevertheless, and one for which the posting remedy seemed to us an appropriate and adequate remedy.

The Employer's Unfair Labour Practice Complaint

55. The allegations of wrong doing raised by the employer in the certification application were also asserted by it in a separate complaint under section 89 of the Act in which it named "Employees of the Complainant" as the persons who were allegedly dealt with contrary to the Act. The employer's standing to raise those allegations as respondent in the certification application was not questioned: see Bennett Paving Materials Limited, [1980] OLRB Rep. 1579. No doubt because the respondent had standing in that capacity, we were not asked to rule on whether the employer had standing to act on its employees' behalf in a complaint to the Board about alleged violations of their rights by the union which was applying for certification as their exclusive bargaining agent. As no such violations were established, the employer's complaint could be dismissed without consider­ing that standing issue.

56. We do wish it clear, however, that the question of standing troubled us. No one can pursue a complaint about the violation of another's rights under the Act except with the authority of the aggrieved person, as the Board observed in Cuddy Food Products Ltd., [1989] OLRB Rep. Feb. 126 at paragraphs 14 and 15:

57. Form 58, the prescribed form by which complaints under section 89 are initiated, specifically contemplates a complaint's being filed on behalf of a person or persons other than the named complainant. Such persons are described in the form as "grievors". When a complaint is filed in that way, the complaint is the grievor's; he or she is considered to have control over it: Norak Steel Construction Ltd., [1968] OLRB Rep. Sept. 638. The form requires that the names, addresses and telephone numbers of such grievors be listed in paragraph 2 of the complaint. The clear intent of the form is that complainants identify clearly the persons whose treatment is the subject of the complaint.

58. Where a complainant names another as grievor, the Board is concerned that the complain­ant has the grievor's authority to represent his or her interests. Except where the complainant is a trade union with bargaining rights for a unit which includes the grievor, the existence of that authority will not be assumed: Adbo Contracting Company Ltd., [1977] OLRB Rep. Apr. 197.

There was no evidence that the employer was authorized by any of its employees, to file and prose­cute a complaint on their behalf. An employer's soliciting or even just accepting authority to act on its employee's behalf against a trade union which is seeking to organize them raises serious ques­tions which are best left unraised.

DECISION OF BOARD MEMBER G. O. SHAMANSKI; May 7, 1990

1. I concur with the findings and the rationale with respect to:

i) Build-up issue;

ii) Allegations of employer's wrongdoing;

iii) The employer's unfair labour practice complaint.

2. I do not however, concur with the majority in respect to the issue of allegations of mis­conduct by the union.

3. I was persuaded that the tactics employed by Mr. Hefferton to solicit signing of union cards from Mr. Doherty was something less than forthright and could not be categorized as aggres­sive salesmanship.

4. Mr. Hefferton's offer of a trip to Canada's Wonderland to Mr. Dehnicke if he would sign a union card is also in my view highly suspect of the methods used in recruiting employees to sign union cards.

5. Mr. Hefferton's approach to Dennis Dumonte on January 31, 1989 left Dumonte with the impression that signing of a union card was a step in the direction of getting a vote i.e. to express his feeling through a secret ballot.

6. Mr. Stevens said to Mr. Doherty on March 10, 1989 to keep his mouth shut or he would get a slap in the side of the head. Albeit this encounter took place after Mr. Doherty saw Stevens riding on the back of a lift truck. I am not convinced that his actions were not an extension of his intimidating method of organizing.

7. The incident of Hines in Dexter's office demanding to see the petition Dexter's refusal to show the petition to him unless he was willing to sign. Hines stated he and Dexter would need a lawyer because he was going to be taken to court.

8. Following the encounter with Hines - Hefferton came into Dexter's office and tried to see the petition. He was advised of Dexter's conversation with the Registrar - Hefferton repeated the threat made by Hines to Dexter that he was going to need a lawyer.

9. Sam Laccose another member of the organizing committee visited Dexter's office that day as well. He through devious means persuaded Dexter to show him the petition. Laccose exam­ined the signature of the petition before leaving. Mr. Dexter says shortly thereafter, petition sign­ers told him they were being threatened and also told they would be summons to court.

10. Mr. Dexter collected signatures on his petition on February 10, 1989. He testified that he decided not to solicit more signatures after being informed that those who had signed were being harassed by union supporters. Although Dexter brought the petition in to work the following Monday and had two more employees signed one who in turn returned to take his name off a few minutes after the signing.

11. It appears evident to me from these proceedings that the union organizers were most forceful in their endeavours to bring the union into the plant, forceful to the point that they would deny to those in opposition to the union the same democratic rights of expression that they them­selves as supporters of the union wished to exercise.

12. It further appears to me that the actions of the union organizers transgressed the rights of employees to respond to their union organization campaign.

13. In conclusion I would have directed a vote in accordance with section 7(2) of the Act. This would allow the employees concerned to secret register their expression for or against the union - something they have been prevented from doing through the actions of the in plant union organizers.