United Steelworkers of America v. Minnova Inc., 1991 CanLII 6068

[1991] OLRB Rep. May 644

1831-90-R United Steelworkers of America, Applicant v. Minnova Inc., Respondent v. Group of Objecting Employees, Objectors

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members G. 0. Shamanski and H. Peacock.

APPEARANCES: Paula Turtle, J. Doucette and W. Dowsett for the applicant union; Lorne Firman, J. A. Snow and J. R. Wilcox for the respondent; Peter Hollinger and David LeBlanc for the object­ing employees.

DECISION OF K. G. O'NEIL, VICE-CHAIR AND BOARD MEMBER H. PEACOCK: May 2, 1991

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. The Board further finds, having regard to the agreement of the parties, that

all employees of the respondent at its Winston Lake Division in the District of Thunder Bay, save and except forepersons, those above the rank of fore-persons, office, technical, clerical and sales staff, students employed during the school vacation period and students employed in a cooperative training program.

Clarity Note: For the purpose of clarity the position of Mine Coordinator, Maintenance Coordinator in the mine, Operating Supervisor, Maintenance/Coordinator and Chief Electrician in the Mill are deemed to be forepersons and therefore excluded from the bargaining unit.

Also for the purposes of clarity, the position of metallurgist is excluded from the above bargaining unit as a technical employee.

constitute a unit of employees appropriate for collective bargaining.

3. The union in this matter had originally submitted membership evidence sufficient to establish that it had the support of fifty-five percent of the employees in the bargaining unit agreed to. There were ninety-nine employees in the bargaining unit at the time the application was made. The applicant filed membership evidence in respect of sixty-one of those employees. (It actually filed sixty-six membership cards but five of those cards did not match the names on the employer's list at the relevant date as agreed among the parties.) The objecting employees filed with the Board fifty individual petitions; seventeen of those who signed petitions in opposition to the union had earlier signed a membership card in the applicant. The applicant also filed with the Board forty-one counter-petitions signed by individuals, thirteen of whom had also signed petitions in opposition to the certification of the applicant, as well as membership cards.

4. The reaffirmations or counter-petitions filed by the union thus bore signatures of a suffi­cient number of employees which overlapped with both the petition and the original membership evidence that, if found to be voluntary, they could re-establish the support of fifty-five percent of the members of the bargaining unit. The Board therefore commenced with an inquiry into the voluntariness of the re-affirmations or counter-petitions.

The Facts

5. The respondent operates a mine near Schreiber, Ontario, north-east of Thunder Bay. The campaign leading up to this application for certification, filed on October 12, 1990, com­menced some six months earlier in the spring of 1990. It was the third application for certification relating to the respondent's miners in eighteen months, the two previous applications having been dismissed after representation votes. The most recent applicant was the Mine Mill and Smelter Workers Union. An earlier application was launched by the present applicant. The current cam­paign started immediately after the results of the vote against Mine Mill and Smelter Workers Union were known.

6. As a matter of policy, and on the direction of the union's legal department, the organiz­ers assigned to this campaign, Wes Dowsett and Gerry Doucette, circulated and arranged to have circulated cards reaffirming support in the steelworkers campaign, which read as follows:

COUNTER PETITION [ORGANIZING CAMPAIGN]

To: THE ONTARIO LABOUR RELATIONS BOARD

400 University Avenue,

Toronto, Ontario M7A 1V4

Re: File #______________

UNITED STEELWORKERS' OF AMERICA [applicant]

• and -

__________________[respondent]

I, the undersigned employee of hereby revoke my support for any petition against the United Steelworkers of America and hereby reaffirm my alle­giance to the United Steelworkers of America and voluntarily express my desire that the United Steelworkers of America be certified as my Bargain­ing Agent.

Date Time Place

Name Signature Witness

7. The plan was to leave these documents to the very end of the campaign in order to put the union in a position to counteract the effect of any petitions filed in opposition to the application for certification. In this campaign the organizers were aware that a petition in opposition to the application had been circulated and they hoped to regain any support lost to that petition and put the application back in a position for automatic certification.

8. The petition documents submitted in opposition to the union were in the following form:

TO WHOM IT MAY CONCERN:

I AM AN EMPLOYEE OF MINNOVA INC. (WINSTON LAKE). I HEREBY WISH TO OPPOSE THE APPLICATION FOR CERTIFICATION BY THE UNITED STEELWORKERS OF AMERICA UNION AS I WISH MINNOVA INC. (WINSTON LAKE) TO REMAIN A NON­UNION WORKPLACE. I HEREBY SIGN THIS PETITION VOLUNTARILY.

THIS WILL ALSO SERVE TO NULLIFY ANY UNION CARDS OR MEMBERSHIP FORMS WHICH I MAY HAVE PREVIOUSLY SIGNED INDICATING MY DESIRE TO BECOME ASSOCIATED WITH ANY LABOUR MOVEMENT.

DATED AT Schreiber, ONTARIO, THIS 23 DAY OF Oct, 1990.

Witness Signature (Please print name below)

9. The four people involved in receiving reaffirmation signatures gave evidence. These were two professional organizers already named and Tom Jameus and Mark Cadarette, two employees of Minnova Inc. All of the reaffirmation signatures were gained between October 22 and October 25, 1990, the large majority of them on October 24 and 25. All of them were gained on dates later than those written on the petition document. Only people who had previously signed membership cards in the union were approached to sign the counter-petitions and an attempt was made to gain as many as possible, whether or not they had signed the petition. The custody of all the signed counter-petition forms was accounted for from the time the blanks were generated on a computer by Mr. Dowsett until they were mailed to the Board by Messrs. Dowsett and Doucette on October 25. Re-signing membership cards was not part of the counter-petition campaign.

10. Each person was given an opportunity to read the form of the counter-petition. Each of the four witnesses said slightly different things to the people with whom they discussed the signing of the counter-petitions. Mr. Dowsett started spreading word with the inside committee on Octo­ber 23 that members could expect to see the organizers during the last few days of the campaign with a counter-petition. He told the people before they signed that it was not his concern whether or not the individual had signed the petition but that he was circulating a counter-petition among all of those who had signed. He explained the purpose of the counter-petition and said that the union wanted to receive their support if they still supported the union. He explained to some that there would be no vote if they had enough overlaps with those who had signed the petition and had also signed cards. Some people approached him to sign the counter-petition and one person refused to sign the counter-petition when asked by Mr. Dowsett if he would.

11. When Mr. Doucette talked to people about signing membership cards he had also told some of them that there would be a counter-petition at the end. Mr. Doucette expressed to those he spoke to about signing reaffirmations that he did not care if they had signed the petition but that if "you guys still want a union we have to have this". He explained the effect of the counter-peti­tion to people saying that if they had signed the petition prior to this it would "kill" the petition and help the men get a union in, but gave no guarantees. He told others that they needed the counter-petition signed to "guarantee that the original card was still good." To one, who had not signed the petition, he said the legal department needed it, that he had to get this done.

12. Mr. Cadarette explained to the person who signed in his presence that the last thing signed counted; he had told other employees the same previously. This individual had told him that he had signed the petition.

13. Mr. Jameus, who had worked on all three campaigns and was a volunteer organizer, asked people if they wanted to reaffirm their support for the union. He told them it would nullify the petition and make their cards good. He did not ask anyone if they had signed the petition. He asked some people to sign the counter-petition who did not.

14. The large majority of signatures on the counter-petitions were received at people's homes or other places where the witness and the person signing were in a one-to-one situation. Many of the signatures were gained without prior appointment. Messrs. Dowsett, Doucette and Jameus spent a good deal of the last two days of the campaign driving around to members' houses, to see if they were available to sign a counter-petition. Eleven of the signatures, including three of the overlap signatures, were received at a restaurant frequented by the miners, where the organiz­ers had made it known they would be during the last few days of the campaign. A number of employees approached the organizers, asking to sign the counter-petition, without being asked to do so. We have compared the testimony concerning time of signing with the shift schedule evi­dence. No issues arose from that exercise; it was confirmatory of the evidence given. The evidence established that the miners are required to function in English in the mine in filling out daily safety cards, and that those mentioned whose first language was not English, also spoke English.

15. For the purpose of our decision we have assumed to be true certain facts that Mr. Hol­linger would have otherwise wished to have proved. These were: (1) that Mr. David LeBlanc, the employee representing the objecting employees throughout the hearing, was not connected with management; (2) The petition that he presented to the Board had no genesis with management and no involvement from management; (3) Management had no knowledge of the petition; (4)

The people who signed it signed voluntarily with very little pressure; (5) The signatures were gained by one individual petitioner visiting the employees' homes after work; (6) Mr. LeBlanc was not given three days off by the company to do the petition. He took three days off of banked time for which he did not have to ask permission. The union did not contest the voluntariness of the petition and took the position that these facts were irrelevant to any other issue. The objecting employees argued they were also relevant to our discretion to order a vote even if we found the reaffirmations to be voluntary.

Argument

16. The union asked us to rely on the counter-petition as the last voluntary statement of the intention of the employees. They submitted the petition was irrelevant as there were a sufficient number of signatures on the reaffirmation documents which overlapped those on the petition to reinstate the membership evidence of over fifty-five percent of the employees in the bargaining unit that the union had initially submitted. Counsel referred the Board to Allan G. Cook Limited, [1986] OLRB Rep. Sept. 1175 for a statement of the requirements for a finding of a voluntary counter-petition. The union submitted that since the post-court decision in Re Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387 it has been clear that this case is not one in which a vote should be ordered, i.e., the fact that people changed their minds a number of times is not sufficient reason to order a vote. Counsel submitted that the Board's jurisprudence is clear: there is no room for considering the relative voluntariness of the various documents. Counsel argued that the reason the Board does not inquire into which document is more voluntary than another is that the Board has never been interested in why people signed any document as long as there was an atmosphere that provided for the voluntary expression. Union counsel also referred us to Laidlaw Wire of Canada, Ltd., [1985] OLRB Rep. Oct. 1479 for the proposition that even if the people did not understand the full potential legal effect of the counter-petitions, that was not relevant if they voluntarily signed the document.

17. Counsel referred to Uxbridge Beverages Ltd., [1982] OLRB Rep. June 961, Leon's Fur­niture Limited, [1982] OLRB Rep. March 404, Dominion Paving Limited, [1986] OLRB Rep. June 705, T. Eaton Company Ltd., [1984] OLRB Rep. July 1015, as well as Re. Royal Canadian Yacht Club and Hotel, Restaurant & Cafeteria Employees Union Local 75 et al., 1981 CanLII 2935 (ON HCJDC), 129 D.L.R. (3d) 554, a decision of the Divisional Court, to support various aspect of the argument that there was no basis in this case to order a vote. Counsel submitted that we could presume that the employees were adults and understood what they were doing. Even if there were language difficulties, counsel sub­mits that Admiral Linen Supply Limited, [1989] OLRB Rep. Feb. 90 stands for the proposition that the Board will not inquire into the level of understanding of English of the people signing membership evidence.

18. For the employer, Mr. Firman argued that certain circumstances suggested that the reaffirmation documents were not voluntary. He said the organizers would just show up at people's places without prearranged meeting and people would sign with little or no discussion. He sug­gested that the concept of confusion of these employees was relevant in a way different from the way the Board had addressed it in the past. He said it was possible that members of management were present in the restaurant when people signed and that would have raised the possibility that people signed the counter-petition to look good in the eyes of management, just as the union says they signed the petition for the same reason. He argued that because Mr. Dowsett had not told people that there was a possibility of a secret ballot and told some of them there would be no vote, he misrepresented the facts to the people since whether or not there would be a vote depended on how many had signed which document.

19. Counsel asked us to consider the following facts as going to the concept of voluntariness in addition to whether or not there was fear of management knowing whether a person signed: (1) the form of the actual revocation, (2) the number of times an organizer approached the person to sign, (3) how many and how many different organizers appeared and who they were, (4) how many campaigns had been waged in the past, (5) whether management members were present when the document was signed, and (6) particular to the present campaign the overlap with the last days of the Mine, Mill and Smelters Workers' Union campaign. In counsel's view, it was a very confusing time for the employees, as there had been several organizing campaigns, and that the Board is entitled to consider their confusion in deciding whether to exercise its discretion under section 7(2) to order a vote. He argued that the margin of support here, fifty-seven percent, is not a very large margin over the fifty-five percent cut-off in the Act. He submitted that such a slim margin is not much on which to go forward and that this is an additional consideration to be taken into account in deciding whether or not to order a vote.

20. Employer counsel also argued that the wording of the petition and the counter-petition meant that the counter-petition was not effective to reinstate the membership cards. He argued that the form of the petition in opposition to the certification included two operative paragraphs, (set out in paragraph 8, above) the first of which was fairly standard and the second one which was not. The second paragraph indicated that the individual intended to nullify any union card. Coun­sel argues that the counter-petition does not re-establish the membership card because its wording does not accomplish that and no new cards were signed. He argues that the reaffirmations only served to reaffirm the allegiance to the Steelworkers and do not indicate in any way that the union card or membership form is back in existence. He argues that there is then a vacuum: the card is gone. After the petition, he argues that there was no basis on which the reaffirmation could be based. Therefore, Mr. Firman asked us to find that there is not a valid application for certification supported by fifty-five percent membership evidence and to dismiss the application.

21. On behalf of the objecting employees, Mr. Hollinger argued that the Board should approach a counter-petition with the same stringent attitude as petitions in opposition to unions. He disputes the rationale of certain Board decisions which say that the considerations are different because of different economic power between employers and unions. He submits that a union has heavy economic power and that although they may not be able to hire and fire they can decide what grievances to process and make other important decisions affecting the economic lives of employees. He asked us to be entirely satisfied that this workplace wants the union. He empha­sizes that fifty-one percent of the employees signed the petition in opposition to the union in the short time between the posting and the terminal date. This is contrasted to the situation in which two full-time organizers were dedicated to eking out their fifty-five percent over six months. Mr. Hollinger submitted that there is a plain line between confusion and misrepresentation and that the union had crossed the line here. He submitted that some of those who signed had not read the card and that there was no evidence of how many of them were illiterate. He said that the real meaning of the counter-petition was never explained because the union organizers avoided the word vote. They said things such as that the "legal department needed it," and on the rare occasions that someone would ask they would respond about the potential effects of the counter-petition on a vote. They never raised the issue of a vote themselves.

22. He submitted that because of the past history of this workplace the employees are aware they get a vote when they sign a petition because they had votes in the last two campaigns. He suggests that they would think the same even though this was a counter-petition: another peti­tion would give them a vote. The miners are not educated in labour law and there was a heavy onus on the organizers to explain what it was they were signing, counsel submits. Although the organizers said that it was support for the union they were seeking they have said the same in the past when asking employees to sign a union card and a vote had been arranged.

23. In a divided workplace such as this, Mr. Hollinger submitted that a vote is the way for the employees to express their true wishes. He suggested that they can outwardly express support for the union and then do something different in the secrecy of the ballot box and nobody could say anything about it. He suggests that the cases that deal with confusion are not ones where there were two previous certification applications and that this distinguishes this case on the facts. He emphasized that in his view the only fair thing to do was to order a vote. He said that in the context of the campaign where the union spent a long time getting the cards and then a petition was signed in two days at people's houses in a situation which management knew nothing about it, we should prefer the petition. He said that the fact that some of the organizers had spent four to five hours with individuals before they signed a union card would give people the impression that the union organizers will not leave and they would sign just to get them to leave.

24. In reply, the union argues that there was no misrepresentation, that in fact Mr. Dowsett was in a position to say that there would be no vote, in that the union could have withdrawn the application. Counsel submitted that the cases are clear that all that is necessary is reaffirmation of support for the union and that a more technical understanding than that is not necessary. Only in cases of fundamental misunderstanding of the purpose of the document would a vote be ordered, counsel argues, and this is not that case. Counsel suggested that the considerations proposed by Mr. Firman are simply not ones which the Board has considered relevant to the determination of voluntariness in the past and should not be adopted now.

25. As to Mr. Firman's arguments as to the wording of the two documents, counsel suggests that section 1(1)(e) of the Act defines a member and that the petitions submitted in this case do not change the fact that the union had fifty-five percent of the employees as members when it made this application. The effect of the petition is not to nullify the membership evidence and the Board has always held that a petition only casts doubt upon it. Counsel suggests that even if one were inclined to give weight to Mr. Firman's argument, the reaffirmation document says that it revokes support for the petition. If the petition nullifies the cards, then the nullification of the petition should restore the card.

Decision

26. The Board found the four witnesses to be credible. Their evidence was not challenged in any material respect on cross-examination or by the documents before the Board. We have found the facts on the basis of their evidence and the documents before us, in light of the submis­sions of the parties.

27. The respondent and the intervener maintained that there was misrepresentation involved in the counter-petition campaign and that the matter of a vote was not discussed with a sufficient number of potential signatories. In considering this argument, we note and agree with the statement of the Board in Leon's Furniture Limited, [1982] OLRB Rep. March 404 at para­graph 11 as follows:

28. The Board has drawn the line of regulation between salesmanship and improper conduct at fundamental misrepresentation, coercion and intimida­tion……...

The Board has not attempted to lay down standards of conduct aimed at responding to confusion and misunderstanding. Rather, it has tried to strike a balance between competing interests by censuring conduct that could deter, coerce or mislead the reasonable employee.

28. The four collectors of the counter-petitions made quite clear that their objective was to regain support for the union that might have been lost due to the petition circulated by Mr. LeBlanc. There is no obligation on supporters or opponents of the union to put the case for the other side when campaigning. The people organizing for the union were not obliged to present the case for the petitioners or for a vote, nor were the petitioners obliged to put the case for the union or automatic certification when soliciting signatures. The evidence before us does not persuade us that the union organizers made misrepresentations to potential signatories. That they did not explain all the possible outcomes of various combinations of numbers of signatures on the various documents is not something that is of concern to the Board. They made it clear to a number of employees that their objective was no vote; to all it was made clear that support for the union side was the purpose of the request for a signature. We are not persuaded that the reasonable employee would think that the counter-petition was a petition for a vote, as was suggested in argument. No one said that to any of the potential signatories, and the document is quite clear that it nullifies support for the petition. If the supporters of the petition explained their objective was a vote, the reasonable employee would be very clear on the objective of the counter-petition. Nor are we per­suaded that the back-drop of the other campaigns makes misunderstanding more likely. To the contrary, we infer that there was a considerable amount of information available to these employ­ees as a result of the several campaigns in a short period of time.

29. There was no evidence of language difficulties, and considerable evidence to the con­trary. Thus we do not consider illiteracy or difficulty with English to be an operative factor in this case and it is unnecessary to discuss the jurisprudence in this area.

30. There was no allegation of intimidation or undue influence and the evidence persuades us that the signatures on the counter-petition were not gained through undue influence or intimida­tion. The evidence did not even disclose a great deal of salesmanship. We do not consider the evi­dence that the organizers arrived at some peoples' homes without appointments to be significant in the absence of any allegation or evidence that this involved anything improper, or even unusual.

31. Both the respondent and the intervener urged us to find that the Board standards are incorrect in that they include an idea that the standard for voluntariness is different for counter-pe­titions than for petitions in opposition to certification. Mr. Firman asked us to take into account the possibility of employees' signing to look good in the eyes of any management personnel who might have been in the restaurant when they signed. Whatever may be said of the countervailing power of the union in the employment situation, and we do not doubt that they have some eco­nomic power, their economic power is different and much more indirect than that of the employer. We see no reason to depart from the previous standards of the Board in determining the voluntari­ness of a counter-petition. We agree with the Board's remarks in Allan G. Cooks Limited, supra, that where there is no threat, intimidation, undue influence, misrepresentation or other conduct which would impair the ability of an employee to voluntarily express his/her wishes that a finding of voluntariness is in order. As well we agree with the comments in Frito-Lay Canada Ltd., [1981] OLRB Rep. May 538 as follows:

While petitions and revocations have equal status in the sense set out above, the Board recognizes that in assessing the weight to be given to a revocation or "counter-petition" there are different considerations than in the case of a petition opposing the union. In the case of a petition, employee signatories are more likely to be sensitive to the perception of management involve-

ment, or the fear that a failure to sign may be communicated to their employer and could result in reprisals. In the case of membership evidence or revocations, however, support will seldom be solicited by individuals who can affect an employee's economic destiny, nor will there usually be any fear that a failure to sign a membership card or revocation will be communicated to the employer and could result in adverse employment consequences. (However, see Veres Wire, [1976] OLRB Rep. July 337 where the Board rejected certain union membership evidence because of the involvement of a foreman in the union's organizing campaign). Accordingly, the purpose of inquiry into the origination of a revocation statement is to determine whether there is any evidence of threats, intimidation, undue influence, mis­representation, or other conduct which might impair the ability of an employee to voluntarily express his wishes. The concerns expressed in Radio Shack and Pigoff Motors have no strict application to revocations or union membership evidence.

32. We see no merit in the argument that signatories might have been influenced to sign the counter-petition by the possibility of the presence of managerial personnel in the restaurant. This suggestion does not accord with the Board's experience of petitioners and counter-petitioners or the evidence in this case. The Board's experience, as expressed in the jurisprudence, is that such a tendency may be present at times in relation to petitions in opposition to unions, but not, in a nor­mal situation, for petitions in support of unions. With a counter-petition, there is not the overlap in interest between the employer and the union that there is with petitions in opposition to the union that would provide a reason for employees to fear that the union might disclose to the employer the names of employees who signed.

33. We also find no merit in the submission that a narrow margin of support over 55 percent is a factor to be considered in ordering a vote. The Legislature has spoken on what is a sufficiently clear majority for automatic certification in providing for 55 percent, rather than a simple majority. There is no basis of which we were made aware for the Board to set the line somewhere else, and we decline to do so.

34. For these reasons, we find the counter-petition to be voluntary, a sufficiently reliable indication of the wishes of the employees at the time they signed it. Based upon the union's deci­sion not to contest the voluntariness of the petition in opposition to the union, as well as the facts stipulated by Mr. Hollinger as set out above, we also find the petition in opposition to the certifica­tion of the union to be voluntary. We are therefore in possession of two voluntary statements of desire.

35. The relevant, overlapping signatures on the counter-petitions are all later than those on the petition in opposition to the certification of the union. In these circumstances, we are not inclined to exercise our discretion to order a vote. The Board's jurisprudence is very well estab­lished that it is the last voluntary statement of intention that will stand for the purposes of the Board's determination of the level of membership support on an application for certification. This is because in the previous cases, as in all the circumstances of the case before us, the counter-pett­tion and the original membership evidence constitutes the most persuasive and reliable evidence of the true wishes of the employees. There is nothing so different about this case or the arguments made to warrant a departure from the established jurisprudence. The argument made that one should take the confusion of the employees to mean that a vote is necessary is one that has been heard and rejected on a number of occasions by the Board. This case is simply another example of the good reasons for the Board's jurisprudence as outlined in cases such as Baltimore Aircoil Inter-american Corporation, [1982] OLRB Rep. Oct. 1387, Leon's Furniture Limited, supra, and the cases cited therein, and Laidlaw Wire of Canada Ltd., supra, among others. In order to compare the relative voluntariness of the statements of desire, or to fix some meaning on each of the changes of mind that have taken place, one would have to inquire into the reasons for the employ­ees' shifts. First of all, this would be virtually impossible to do without making a farce of the confi­dentiality requirements in section 111. Secondly, it would ignore the emphasis the statute places on membership cards as the method of determining employee wishes and whether employee support is in excess of fifty-five percent.

36. We have carefully considered Mr. Firman's argument as to the effect of the respective wordings of the petition and the counter-petition and do not find merit in it. The jurisprudence is extremely well established that the effect of a petition on the membership evidence is to put it in doubt, not to void it. This is why the maximum effect that is given to a petition is a vote. The Board, subsequent to the court decision in Canadian Yacht, supra, reaffirmed this in T. Eaton Company Ltd., supra, and we agree with the Board's decisions in both those cases. Where the Board finds a voluntary relevant petition, and orders a vote, this does not mean that the union did not have fifty-five percent membership evidence. It simply means that there was sufficient doubt raised about the true intentions of those members to warrant the exercise of the discretion in sec­tion 7(2). Where that cloud on the evidence of membership support is removed by a voluntary counter-petition, there is no necessity for a vote.

37. In any event, we find that the wording of the counter-petition is sufficient to counter the wording of the petition. In removing support for the petition, an employee can be inferred to have removed support for all the wording in it, including the revocation of the membership card. Fur­thermore, in the circumstances of this case, this argument flies squarely in the face of the other arguments made by the respondent that the employees were so confused that they did not know the effects of the various documents they signed. If they were contemplating the legal niceties of the exact phrasing of each document and were therefore motivated to retract their card and then reaffirm their support for the union but not reinstate their card, they would be exercising a level of sophistication that is far above that argued for by the respondent.

38. The applicant challenged the inclusion on the list of employees of an employee named Brian McFarlane, an industrial electrical apprentice, on the basis that he was a technical employee (instrumentation and technician). However, the inclusion or the exclusion of this employee would not affect the right of the union to be certified nor the description of the bargaining unit. Thus we leave it to the parties to attempt to resolve this matter themselves.

39. A certificate will issue to the applicant.

DECISION OF BOARD MEMBER G. O. SHAMANSKI; May 2, 1991

1. I concur with the facts as stated by the Vice-Chair. However, I do not agree with the conclusions of the majority in their deliberations. I therefore dissent.

2. It should be noted that at this particular work facility, Minnova Inc., there has been a number of union organizing drives in the past few years.

3. In the case of one organizing campaign the application for certification was withdrawn. In two other campaigns the Board directed votes be taken. The unions involved in these votes were defeated. We are now dealing with the fourth application for certification with respect to this unit in four years.

4. I am convinced that under the circumstances (i.e. the number of union organizing drives - petitions against the union representation - counter-petitions supporting the unions - two votes directed by the Board) that what these workers have been continually bombarded and saturated with over the past three years, has created an atmosphere of confusion that can only be cured by extending to these workers a democratic vote to freely express their desires.

5. I would therefore have exercised my discretion and directed that a vote be taken.