Peter Sourtzis v. United Steelworkers of America, 1991 CanLII 6024

Peter Sourtzis v. United Steelworkers of America

[1991] OLRB Rep. January 1

0561-90-R Peter Sourtzis, Applicant v. United Steelworkers of America, Respon­dent v. Allan Windows, Intervener

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members I. A. Rundle and H. Peacock.

APPEARANCES: Peter Sourtzis for the applicant; Michael Gottheil, Jonathan Eaton and Brando Paris for the respondent; Lynda A. Coulter for the intervener.

DECISION OF THE BOARD; January 7, 1991

1. The name of the respondent is amended to read: "United Steelworkers of America".

2. This is an application for termination of the union's bargaining rights under section 57 of the Labour Relations Act. Subsequent to the filing of the petition in support of this application, a certain number of statements of reaffirmation of support for the union were filed. After a review of the list and the count with the Board's Officer, the parties agreed that the reaffirmations were not relevant as they would not bring the number of employees in support of the termination appli­cation below 45 percent. The Board therefore inquired into the voluntariness of the petition and not of the reaffirmations.

3. The applicant, Peter Sourtzis, is a leadhand in the glazing department. Several employ­ees from his department approached him in the period before the expiry of the collective agree­ment on April 15, 1990 as to what steps could be taken to terminate the bargaining rights of the union. Informal discussion continued in the plant as to the pros and cons of unionization. Seven­teen or eighteen employees then had a meeting on May 14, after which he was approached again. He arranged for the drafting of and was the circulator of the petition. He formerly held the posi­tion of sub-steward for a union at another workplace and was thus of the opinion that other employees considered him to have some expertise in matters relating to the union and that this was why people had approached him, as well as because his English is better than many of those in his department. Mr. Sourtzis saw this as people giving him a job to do. He gave the impression throughout his testimony that he would not have started the petition if people had not come to him and asked him to do it. Ms. Hyatt, a bargaining unit employee with whom he discussed the idea, indicated she would have done it if she had not been sick at the time.

4. The exact dates of the drafting and signing of the petition are uncertain. Mr. Sourtzis originally testified that he was sure that the document was created on May 20, 1990, but other evi­dence later convinced him he must be mistaken. Ms. Hyatt testified that, although she had not wit­nessed the drafting, she knew that her daughter had written the heading on May 13, the date on which Peter Sourtzis had spoken to her to say "we want to get the union out". However, Mr. Sourtzis indicated he had prepared the petition with the help of Ms. Hyatt's daughter after the employees' meeting, which the two witnesses who had attended put at May 14, 1990.

5. Mr. Sourtzis witnessed every signature on the petition. He testified that he told people to read the petition before they signed. Tileta Hyatt's daughter wrote the following words at the top of the petition, apparently on May 13th, at her home:

We the workers of Allan Windows would not like to have the United Steel Workers of America representing us.

If people indicated they did not understand these words he took a Vietnamese or Indian person with him to interpret. He did not explain to people what the words meant before they signed. He said people already knew what they meant because they had asked him after they had decided that they were against the union. Word passed among the employees in the group who had asked Mr. Sourtzis to assist them with decertifying the union. Most of the signatures were obtained at homes of employees but some were done at a donut shop close to the plant. None of the signatures were gained on company property and Mr. Sourtzis did not bring the petition to work. He did not speak to anyone in management about it and never gave the petition to anyone else.

6. Mr. Sourtzis did not know all the signatories by name but knew their faces and was able to testify in some detail as to the circumstances of most of the signatures. He phoned some people before he went to their houses, some people invited him to their house after four o'clock and he arrived unannounced to others. He had phone numbers for some, but not all, of the employees from social occasions and because his brother, another leadhand, had phone numbers of some fel­low countrymen. Another leadhand, Danesh Deoram drove him around from place to place, usu­ally waiting in the car for Mr. Sourtzis to finish. On one night Mr. Sourtzis collected ten signatures by going around from apartment to apartment in the area where many of the employees lived close together. When all the signatures were obtained, Mr. Sourtzis made photocopies and mailed it by registered mail on May 24th.

7. Mr. Sourtzis' memory was not clear on details particularly as to timing. For instance, he said in his direct evidence that he took the day off to mail the petition to the Board but later on he testified that he went home to get it and mailed it at lunch hour and returned to work late. He said he and Mr. Deoram asked for and received permission to do so saying it was personal business. At a later point he took a half day off to deliver a copy of the collective agreement to the Board. He changed his evidence as to when the last signature was obtained as a result of his confusion over the circumstances in which the petition was mailed to the Board.

8. There are dates next to signatures on the petition ranging from May 15 to May 24, 1990. When they signed their names some people did not put a date on the petition. Various other peo­ple filled in some of the dates. The evidence was confusing as to who inserted what dates and it is doubtful that they are all reliable indications of what date the corresponding signature was placed on the document. Mr. Sourtzis originally said that one co-worker put the dates in but in later evi­dence indicated that a second co-worker also put some dates in. Ms. Hyatt testified that her daugh­ter, who printed the wording at the top of the petition, also put in a number of the dates on May 20 when Tileta Hyatt signed, from Mr. Sourtzis' memory of when they had signed.

9. Mr. Sourtzis' duties as leadhand, which is a bargaining unit position, became the subject of much evidence and argument. It attracts forty cents per hour as a premium. He works in a department with fifteen people and said that he had no special duties, that he worked like the rest of the people in his department. He said he referred things like discipline to his cousin Steve Sourt­zis for action. Ms. Wilkins, the Office Manager corroborated this view and expressed her opinion that he had no control over the economic lives of other employees. However, the evidence in its totality satisfies us that he is in charge of the flow of the work and for correcting peoples' mistakes. His complaints about employee conduct have resulted in discipline from Steve Sourtzis, the plant foreman. In one discipline notation he was referred to as a foreman, although the company describes this as a typographical error and noted that disciplinary notices are not posted in the plant. He has no authority to hire or fire. He is responsible for a daily production record to be given to the foreman. People speak to him or the plant foreman before leaving early. One of the people who went to him for assistance with the petition referred to him as the person who is in charge of the department.

10. On April 18, 1990, less than a month before the petition was circulated, a document was published by the company, listing the foreman and leadhands in the plant without labelling which person was a foreman rather than a leadhand. The union made an issue of the fact that employees could have been confused as to who were the foremen and who were the leadhands. The evidence as a whole indicated that the differences between the working foreman and the leadhands was not indeed very great. For instance, the foreman has to approach the plant foreman on disciplinary matters as do the leadhands. The office manager knows who are the foremen and who are lead-hands only by whether or not union dues are deducted from their pay. From this, employer coun­sel argued that the foreman did not have very prominent managerial duties either and therefore nothing should flow from any confusion between foremen and leadhands. As well, each individual would have been clear on who his or her own leadhand was.

11. A union witness, who had signed the petition, thought that the difference between a foreman and a leadhand was that a foreman could get you fired and the leadhand could not. He says he thought Sourtzis was a foreman because of the way he ran the department. The view that Mr. Sourtzis' style marked him as a foreman in employees' eyes was shared by the other two union witnesses, Mero and Merchan, but not by the applicant's witness Hyatt. The union's witnesses characterized Mr. Sourtzis as wielding more authority in departments other than his own than other leadhands, and having more direct access to Steve Sourtzis, the plant Manager, than other leadhands, bypassing the foreman, Manuel Avila. Ms. Hyatt, on the other hand, said that Peter Sourtzis simply urged people to hurry when production was needed, much like others, as part of the general cooperation that is common when it is necessary to get work out quickly. She was of the view that people became foremen after being leadhands for a certain length of time.

12. Another issue raised by the union to cast doubt on the voluntariness of the petition is the familial relationship between Peter Sourtzis and management. The plant foreman, who man­ages the entire plant, is Steve Sourtzis, the applicant's cousin. A third Mr. Sourtzis, Peter's brother, is another lead hand. The union presented evidence from one signator of the petition that he assumed that management would know whether he signed or not because Peter and Steve are family. Ms. Wilkins, the office manager, said that if the relationship has any effect it is that Steve is harder on Peter than other people because he is family whereas the union's Plant Chairman said that Peter's special relationship with Steve is evident in the plant because Steve "protects Peter in everything he does."

13. The signator who testified for the union said that when Mr. Sourtzis, whom he thought was a foreman, asked him to sign, there was nothing on the petition to read and that Mr. Sourtzis just said to sign it. This witness had heard someone whom he declined to name saying that without a union there would be lay-offs and that those who signed the petition would be kept and so he says he signed to protect his job. He said that the signatures in the signature column above his name on the document were not on the petition when he signed. Mr. Sourtzis maintains that he told him not to sign without reading and that this signator was in a big rush to sign and he just signed. The signator said in response that, seeing that Mr. Sourtzis had the majority of the other employees' names, he signed too. He also testified that he thought the fact that he signed would get back to management because Steve and Peter are family.

14. Evidence indicated that a notice dated May 16, 1990 was posted in the plant naming 18 people out of the 61 member bargaining unit who would report to work on May 22th, as part of a partial lay-off between May 18 and 28, 1990.

Argument

15. Mr. Sourtzis emphasized that he had obtained all the signatures off company premises and that he had left people free to sign or not as they wished. He did not agree that people saw him as a foreman, and urged the Board to order a vote.

16. Management counsel argued that on all the evidence we should not conclude that Peter Sourtzis was perceived to be a foreman. She said that the responsibilities of Manager in the plant are with the plant foreman who works closely with the Plant Manager and the owner and not with either the foreman or the leadhands. She said that the union witnesses who saw Mr. Sourtzis as a foreman lack credibility. She emphasized that the only reason i;hat Ms. Hyatt had not done the petition was that she was sick and otherwise Mr. Sourtzis would have had nothing to do with it. She said that the union's case rests on a relationship between Steve and Peter Sourtzis who are only cousins. Steve's job is over sixty-six people and Peter's is over ten. He does not discipline, he does not authorize vacation or grant overtime. He merely directs the work while working alongside of the other people in the department.

17. Union counsel argued that it was important to emphasize that the task of the Board is not to decide whether the employees are dissatisfied but to decide whether or not the petition was voluntary. The union suggested that Sourtzis was a completely unreliable witness because of his difficulty remembering places and times. He said that the Boaid must decide whether this was a reliable document and submitted that the evidence surrounding it indicates that it is not. The union points to the uncertainties in the evidence as to when the wording was put on the petition and when the dates were filled in. The union bases its case on the inconsistencies in the evidence and the perception of the employees that Peter Sourtzis was either a foreman or so close to manage­ment as to warrant the inference that employees would think that whether or not they signed would come to management's attention.

Decision

18. The Act requires us to determine whether 45 percent of the employees in the bargaining unit voluntarily signed the petition circulated by Mr. Sourtzis. The Board has clearly indicated in the past that this means that the onus is on the applicant to satisfy the Board that the employees who signed did not do so out of fear that their managers would learn whether they signed or not, or out of a wish to identify themselves with something they view as sanctioned by management, whether tacitly or not. The process of deciding whether it is so satisfied involves a consideration of the evidence of all the surrounding circumstances to determine what the reasonable or average employee, neither the overly intrepid, nor the overly timid, might have concluded as to the peti­tion. In this regard, the Board has held that it is not necessary or desirable to hear from a series of individual signators as to what did or did not influence them, as this is subjective evidence. In some cases, it has specifically excluded such evidence particularly if the source of the employee concerns is unidentified. See the discussion of the problems with such evidence in Zest Furniture Industries Limited, [1987] OLRB Rep. Feb. 299.

19. There are factors that would indicate that we should accept the petition as an expression of the voluntary wishes of those who signed. Firstly, it seems to have arisen freely from a group of employees who were discontent with the union feeling that the benefits of being unionized did not warrant the level of dues. The evidence indicates that Mr. Sourtzis did not get up the petition on the behest of his superiors, but of people in his department who had less facility with the English language and less familiarity with union matters than he. He does not appear to have used his posi­tion as a lead hand or as a cousin of the plant manager to "sell" the petition, but relied on the indi­viduals to read the heading and sign or not as they wished. Signatures were not gained on employer premises. Not all employees saw him as a foreman, and even if they did, his position is a bargain­ing unit position and he should not lightly be deprived of the right under the Act to bring an appli­cation to terminate the union's bargaining rights. See, among others, Tip Top Tailors [1981] OLRB Rep. April 492 and Irwin Toy Limited, [1983] OLRB Rep. April 536.

20. We would also note that the evidence of the signator that he signed out of fear for his job was subject to internal inconsistencies, and it is difficult to assign it much weight, particularly in light of the problems of deciding these matters on the basis of individual perception referred to above. Individuals have varying reactions to the same stimuli. Without knowing the source of the statements which this signator said he was reacting to it is impossible to evaluate whether the aver­age reasonable employee would have ascribed importance to them. This is particularly so when the threat to his job was allegedly lay-offs that would come when the union was out at a time when the employees were already in the middle of a lay-off. As well, although the witness said he signed out of fear for his job, when challenged on that by Mr. Sourtzis, he said he signed because most of the other employees had signed. While both could theoretically be true, the latter detracts from the former. As well, he testified that there were not signatures on the sheet when he signed. It is clear that his was the last signature. Three witnesses other than Mr. Sourtzis testified that there were numbers of signatures on the document before he signed, and the physical placement of his signa­ture on the page is such that it appears to follow in a line from the others. Thus, at least this part of his evidence does not appear to be correct.

21. There are also factors tending to the opposite conclusion - that people did not sign vol­untarily. Firstly, although there is no evidence of direct managerial involvement in the origination and circulation of the petition, Peter Sourtzis is a leadhand, and a relative of management. Where the Board has determined that the circulator of a petition would be reasonably perceived as closely associated with management and that a reasonable employee would be concerned that manage­ment would come to know whether they signed the petition or not, it has not relied on the petition as a voluntary expression of employee wishes. See, among others, Johnson Mauhey Limited, [1987] OLRB Rep. April 518.

22. Peter Sourtzis' recommendation had resulted in discipline of other employees, on the notation of one of which he was described as a foreman. Some employees undoubtedly perceived him as closely aligned with management, whether because of his power of effective recommenda­tion for discipline, family relationship with the Plant Manager, and/or confusion as to whether he was a foreman or not. It is a reasonable inference that employees who perceived him in this man­ner would see him as likely to disclose to management whether or not he or she signed.

23. Although Mr. Sourtzis may have been approached about the petition because of his previous union experience, he was the leadhand of those who approached him and it is equally plausible that his supervisory position, however circumscribed, was part of the reason these people turned to him. Much of Mr. Sourtzis' evidence was aimed at stressing that his actions were in response to the meeting of the employees which he did not attend. In this regard, it is troubling that the employees who attended the meeting were quite clear that it took place on May 14, while Ms. Hyatt's evidence was that the petition was drafted before that, on May 13th when Mr. Sourtzis came to see her about decertifying the union. The only other date in evidence as to the drafting of the petition was Mr. Sourtzis' original testimony to the effect that it was drafted on May 20th, but he later believed this to be in error, and all the other circumstances suggest that the the date of drafting was earlier than that. This leaves the only evidence as to when it was drafted as May 13, which is in conflict with the sequence that Mr. Sourtzis stressed in his evidence. The importance of this conflict is somewhat reduced by the fact that employees had spoken with him before then as well, but it remains a concern.

24. In assessing the weight to be given to the various competing considerations in this case we agree with the following excerpt from Ontario Hospital Association [1980] OLRB Rep Dec. 1759 at paragraph 32:

…….having regard to the simple history of this matter, and the demeanour and evidence of the various sponsors of the petition as to their reasons for embarking on the course of conduct that they did, the Board is satisfied that these individuals acted on the basis of their own initiative and personal choice. The origination of the petition, in other words, in not a matter that trou­bles the Board in the present case. That, however, is not an end to the matter. While the signa­tures on the documents before the Board represent in excess of the 45 percent required under section 49(3) of the Act before the Board can direct the taking of a representation vote, the Board must still ascertain whether the signature of not just the petition's sponsors but of a full 45 per cent of the unit, are a voluntary reflection of those employees' wishes. It must be remem­bered that the Board has the benefit of the direct evidence of only the sponsors of the petition who appear to testify; the remainder of the employees' wishes can be ascertained only through the evidence that they signed the petition, together with the inferences that the Board is able to draw from the circumstances under which they signed. As far as these other employees are con­cerned, their action in signing the petition presented to them represents no more than what the Board has described as their "ostensible" wishes, and the Board still has upon it the statutory obligation to ascertain from all of the surrounding evidence whether their actions in signing can be taken to have been voluntary. While background factors may, once again, be properly taken into account in weighing this issue of voluntariness, particularly where the evidence on circula­tion is at all equivocal, the Board is not entitled to simply assume from this alone that any employees who have signed have done so voluntarily. To do so would render meaningless the insertion of the "voluntarily" in the subsection, together with the inquiry which the Board has always considered it necessary to undertake in these cases.

25. In light of the Board's jurisprudence on the question of voluntariness, the issue is whether the Board has reasonable assurance that a full 45% of the signators signed without a con­cern that whether or not they signed would come to the attention of management and/or out of a wish to identify themselves with something that the employer favored them doing. Because of the strength of the competing considerations outlined above, this case is close to the line. In circum­stances such as these, the onus of proof becomes an important consideration. The onus is squarely on the applicant to convince the Board, on a balance of probabilities, that the circumstances in which a full 45% of the signatories of the petition signed are free of the concerns outlined above. In this case, the combination of the problems in the evidence about the sequence of creation of the document, together with the dual reasons why a signator might perceive Peter Sourtzis as closely aligned with management - both a family relationship and his leadhand responsibilities, particularly in respect to his power of effective recommendation for discipline - is of significant concern, whereas any one of them in isolation might be overcome. Although Peter Sourtzis does not have the power to fire directly, a series of adverse recommendations from him could well have the same result. In this regard, the evidence convinces us that he does have some control over the economic lives of his fellow employees. We find ourselves unconvinced that employees would more likely than not have signed free of a concern that whether or not they signed would become known to management, much as daily production and problems with their performance came to be known to management through the agency of Mr. Sourtzis.

26. In the result the application is dismissed.