Bonnie Sawyer and fellow employees v. Retail Wholesale and Department Store Union, Local 414, AFL:CIO:CLC:

[1991] OLRB Rep. March 321

0516-90-R Bonnie Sawyer and fellow employees, Applicants v. Retail Wholesale and Department Store Union, Local 414, AFL:CIO:CLC:, Respondent v. Kent Drugs Limited, Intervener

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. W. Pirrie and K. S. Davies.

APPEARANCES: Paul B. Nielsen, Bonnie Sawyer and Barbara Whitfield for the applicants; Robert McKay, John Fuller and Primrose Short for the respondent; Ann F. Burke, Rick Ashley and Ted Smith for the intervener.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER K. S. DAVIES; March 7, 1991

1. This is an application under section 57(2) of the Labour Relations Act for a declaration that the respondent (also referred to in this decision as the "Union") no longer represents the employees of the intervener (also referred to as the "Company") in the two bargaining units described below, for which it is the bargaining agent.

2. It is common ground among the parties that this application is timely, and that the respondent is currently the bargaining agent for the following bargaining units:

Full-time bargaining unit

all [of the Company's] Full-Time employees at its Drug City Store in Orangeville, Ontario, save and except Store Manager and Assistant Store Manager, persons above the rank of Assistant Store Manager, pharmacists, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period;

Part-time unit

all [of the Company's] Part-Time employees at its Drug City Store in Orangeville, Ontario, regularly employed for not more than 24 hours per week and students employed during the school vacation period, save and except pharmacists.

3. During the six and a half days that were devoted to hearing evidence and argument regarding this application, eight persons were called as witnesses (including one person recalled as a reply witness). In making the findings and reaching the conclusions set forth in this decision, we have duly considered all of that oral evidence, as well as the documentary evidence that has been placed before us, the submissions made by the parties' representatives, and such factors as the firmness of the witnesses' respective memories, their ability to resist the influence of self-interest to modify their recollections, the consistency of their evidence, and their demeanour. We have also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.

4. Ms. Sawyer represented herself and the other applicants on July 9, 1990, the first day of hearing of this application. On August 13, 1990, which was the second day of hearing, Paul B. Neilson, an Industrial Relations Consultant, appeared on behalf of the applicants and requested an adjournment on the grounds that he had just been retained the preceding weekend. After hearing submissions regarding that request, which was supported by the Company but opposed by the Union, the Board made the following unanimous oral ruling:

The need for expedition in Board proceedings is well established in the Board's jurisprudence. In the absence of consent by all of the parties, the Board will generally not grant an adjournment in the absence of exceptional circumstances beyond the control of the party requesting the adjournment. In the instant case no such circumstances are present. If prior to the first day of hearing the applicants were unaware of their right to be represented by counsel or an agent, they clearly became aware of that right on July 9, 1990, the first day of hearing, at which the intervener was represented by counsel. Although it appears that Mr. Neilson was only recently retained to represent the applicants, we are satisfied that if the applicants had exercised due diligence, they would have been in a position to retain and instruct counsel or an agent reasonably in advance of today's hearing. Accordingly, the applicants' request for an adjournment is denied. However, as suggested by the respondent, we are prepared to recess today's hearing until after lunch, in order to afford Mr. Neilson an opportunity to further familiarize himself with the applicants' case. Accordingly, this hearing is recessed until 1:00 p.m.

5. Prior to his retirement in September of 1988, Mr. Neilson was Corporate Vice-President of Industrial Relations for The Oshawa Group Limited, which is the intervener's parent company. In 1982, Mr. Neilson was on the bargaining committee that negotiated on behalf of the intervener in the first round of collective bargaining following the Union's certification. There is no evidence that the intervener or its parent company had any involvement in the selection of Mr. Neilson as the applicants' representative, nor that any of the employees who signed the petitions described below were aware that he would subsequently become involved in the proceedings. Under the circumstances, we are satisfied that his subsequent involvement bears no relevance to the issue of the voluntariness of the petitions.

6. As indicated above, this application pertains to bargaining rights held by the Union in respect of persons employed at the intervener's Drug City Store (the "store"), which is the only one of the intervener's stores in respect of which a union holds bargaining rights. The store is located in a strip plaza in Orangeville. There is a pharmacy area behind the "front shop" (general merchandise) area of the store. The front shop is managed by Rick Ashley, the store's General Merchandise Manager. Behind the pharmacy area are the store's stockroom, receiving area, wash-rooms, and two upstairs offices, including Mr. Ashley's office. There is also an eight foot square lunchroom between the receiving area and the stockroom. The offices are located opposite the lunchroom in a raised area which is reached by a stairway with about six steps.

7. Ms. Sawyer is a general clerk whose primary work areas in the store are the receiving area and the stockroom. She also works in the front shop, performs some paper work on the table in the lunchroom, and is responsible for removing outdated letters and memos from the lunchroom bulletin board, which has a centre-framed area for Union notices. Ms. Sawyer has become quite dissatisfied with the Union and, in particular, with its full-time steward, Primrose Short, and its part-time steward, Margaret Studley. On October 31, 1989, she wrote a three and a half page letter to John Fuller, the Union's Business Agent, in which she expressed the opinion that the local was "in danger of dissolving" because the stewards were "making a comedy of [the] local and what it stands for". Her concerns in that regard were heightened by an incident which occurred in the store in early April of 1990, as a result of which Lisa Brand, who was a part-time employee at that time, was disciplined by the Company for refusing to follow certain instructions from Ms. Short, who was the senior clerk in charge of the front shop area of the store on the Sunday on which that incident occurred. It is not necessary for purposes of this decision to detail Ms. Sawyer's concerns about that incident and the matters raised in her letter, nor is it necessary or appropriate for us to express any opinion about the validity of her concerns. It is also unnecessary to describe what was said about that incident at a meeting that took place on April 18, 1990, as we are satisfied that nothing which occurred at that meeting is of assistance in deciding the matter before us.

8. Ms. Sawyer submitted a written resignation to Mr. Ashley on May 14, 1990. It was to be effective on May 25, but as a result of a twenty or thirty minute discussion with Mr. Ashley during the afternoon of May 14 in the restaurant next door to the store, she revised the effective date to July 21. During that discussion, Mr. Ashley told Ms. Sawyer that she was a good worker and that he did not want to lose her. Since he believed that one of the reasons she had decided to quit was her concern about lifting heavy merchandise without adequate assistance, he indicated that he had begun to make arrangements for a meeting to be held in the store with regard to receiving and lifting of heavy merchandise. He also stated that "things are bound to get better", and asked her to "hang in there for a while".

9. Ms. Sawyer testified that she got the idea of preparing petitions in support of decertifying the Union from discussions with friends, relatives, and co-workers about her concerns with the Union and its stewards. She filed two petitions with the Board in support of this application. In accordance with the Board's usual practice, the signatures on those petitions were numbered by the Board's staff (Ti, T2, T3, etc.) to enable the Board to receive testimony concerning the circumstances in which the signatures were obtained without divulging the names of the persons who signed. However, that numbering created some initial confusion in the instant case since the undated petition that was actually the first one signed by employees was numbered as if it were second. It contains four signatures which also appear on the petition dated May 22, 1990, and which were numbered by the Board's staff in the order in which they appear on the latter.

10. The first petition (also referred to in this decision as the "posted petition") is written on the back of a 9" x 11" sign (the front of which reads: SMOKING IS ALLOWED ONLY IN THE LUNCHROOM AND ONLY AT DESIGNATED TIMES). It bears Ms. Sawyer's signature and the signatures of four other full-time employees, including Barbara Whitfield, who also testified before the Board in support of the petitions. The second petition (which is written on a smaller piece of notebook paper) was signed by Ms. Sawyer, Ms. Whitfield, two of the three other full-time employees who signed the posted petition, and seven part-time employees.

11. Ms. Whitfield has been employed at the store since 1980. As one of the store's senior clerks, her duties and responsibilities included opening and closing the store, authorizing cheques, taking care of transaction voids and refunds, directing other staff members in accordance with written instructions from Mr. Ashley, doing some banking and book work, and supervising front shop staff in Mr. Ashley's absence. In addition to those duties which occupy about a third of their time, senior clerks carry out a number of tasks also performed by general clerks, such as looking after an assigned section of the store and operating a cash register. A job exchange was arranged in May of 1989 between Ms. Whitfield, who was a senior clerk in the pharmacy area of the store, and Ms. Short, who was a senior clerk in the front shop. That exchange was set up on a three-month trial basis, but was subsequently made permanent by mutual agreement.

12. Following discussions with Mr. Ashley and Ed Holmes, the intervener's Manager of Human Resource Services, Ms. Whitfield became a "Manager Trainee" in mid September of 1989. Her appointment to that position was noted in the November/December 1989 edition of the "Oshawa Observer" (which is a staff magazine published by The Oshawa Group Limited), and was common knowledge among store employees. As a Manager Trainee, Ms. Whitfield attended a Company seminar on "Guidelines and Effective Management", and took two community college courses at Company expense. Although she continued to perform essentially the same work as before becoming a Manager Trainee, she was given greater exposure to various Company reports and to the Company's inventory control system. She was also exempted from the normal requirement of punching in and out. When he was asked by the Union during cross-examination why, unlike all of the other bargaining unit employees, Ms. Whitfield was not required to punch in and out, Mr. Ashley replied: "It was a decision made as an assistant, basically on my recommendation, because if someone can't manage their own time, there is no point in pursuing it." (Ted Smith, the intervener's Vice-President of Human Resources, testified that Ms. Whitfield should have been required to continue punching in at the start of her workday and out at the end of her workday, and should only have been exempted from punching in and out for lunch. He attributed her total exemption to an administrative oversight.)

13. Ms. Whitfield does not have any authority to hire or fire employees, nor can she grant them time off or alter their wages. Her only involvement in disciplinary action arose out of an incident that she witnessed in the store. When she overheard a general clerk swear in the presence of a customer on May 10, 1990, Ms. Whitfield admonished her and reported the incident to Mr. Ashley, who arranged a meeting with the employee and her Union steward at which the employee was verbally reprimanded for that and another incident. Ms. Short was present at that meeting in her capacity as full-time Union steward. Ms. Whitfield was also present at that meeting. There is conflicting evidence concerning the reason for her presence. Ms. Short testified that she asked why Ms. Whitfield was there and was told by Mr. Ashley that Ms. Witfield was there in a management position or in the position of management. She could not remember which of those two phrases Mr. Ashley used, but did recall that the word "management" was in the phrase. Mr. Ashley, on the other hand, testified that Ms. Short asked him if Ms. Whitfield was there as a member of management and was told that she was not. However, he also testified that he normally arranges for one of the pharmacists to be in attendance with him at disciplinary meetings but was unable to do so on this occasion because no one was available. He further stated, "She [Ms. Whitfield] was there as a third party because I don't like going into a meeting without someone else there." When asked if Ms. Whitfield participated at all in any discussion at the meeting, Mr. Ashley replied, "I don't believe so." Ms. Whitfield told the Board that she was unable to recall Ms. Short raising the matter of whether she was there as a management representative. She also testified that she did participate in the discussion at the meeting.

14. In early May of 1990, Ms. Whitfield was promoted to the position of Merchandising Supervisor, to reflect her successful completion of the first level of management training. She received a raise at that time, and gained access through the Company's Head Office to more advanced supervisory training and training with respect to report reading and analysis. She also obtained greater access to information concerning Company operations. However, she remained in the (full-time) bargaining unit as her duties and responsibilities were essentially unchanged.

15. The Company has a non-solicitation policy that is set forth as follows in the employee handbook, which is distributed to each new employee and which is also available in the store for reference:

HANDBILLS AND SOLICITING

In order that you are not pestered or annoyed with unwanted solicitations, Kent Drugs protects its employees from this sort of thing by prohibiting distribution of handbills and catalogues, as well as soliciting of memberships, pledges, subscriptions, petitions or sale of articles. This applies equally to employees as well as outsiders.

The evidence indicates that when management becomes aware of a contravention of that policy, steps are generally taken to enforce it.

16. Shortly after arriving at the store on Wednesday, May 16, 1990, Ms. Sawyer approached Mr. Ashley in the stockroom and asked if she could post something on the bulletin board. During her testimony before the Board, Ms. Sawyer initially stated that Mr. Ashley said “no”. However, during cross-examination by the Company, she was asked, "Is it possible that when you approached [Mr. Ashley], you asked him if you could post something and he said 'okay' without asking what was to be posted", to which she replied, "It's possible". During cross-examination by the Union, Ms. Sawyer stated: "I remember I asked if I could post a sign. I think he said 'no, unless it has something to do with union business'. I think he said that. I'm not sure." Mr. Ashley testified that he had a brief conversation with Ms. Sawyer in the stockroom first thing in the morning on May 16. It was his evidence that she asked him if she could put something up on the bulletin board and that he said "okay" without knowing or asking what it was.

17. Later that morning, Ms. Sawyer took down the aforementioned smoking sign that was posted on the bulletin board in the lunchroom and signed her name on the back of it after writing the following heading:

Notice of Decertification

All those wishing to decertify from this union please sign here.

She then re-posted it with that side facing outward. Two other full-time employees (T12 and T2)

signed the posted petition while Ms. Sawyer was in the lunchroom on her lunch break that day. She also saw Ms. Whitfield (T3) sign it a few minutes later. (T12 signed only the posted petition and not the second petition (described below) because she was away on vacation when the second petition was circulated.) The posted petition remained on the bulletin board for approximately an hour, including the lunch break which (according to her time card) Ms. Sawyer took from 12:12 to 12:39 p.m. that day. The bulletin board is visible to anyone who walks by the lunchroom, including Mr. Ashley who regularly passes by that area. Mr. Ashley noticed the petition while it was posted there, and went into the lunchroom to read it. No one else was in the lunchroom at that time. After reading the heading and the five signatures on the posted petition, Mr. Ashley, who was unsure of what to do, telephoned Mr. Smith, the aforementioned Vice-President of Human Resources. Mr. Smith, who (in his own words) has been aware for "at least two decades" that "if the employer were involved [in a termination application] in any way, the application would fail", instructed Mr. Ashley to see that the posted petition was removed by whomever had put it up and "to advise the party or parties that that sort of thing could not be allowed in the store". After completing his preparation for the meeting that he was scheduled to attend that afternoon at the Company's Head Office, Mr. Ashley approached Ms. Sawyer in the stockroom, asked her to remove the posted petition, and told her that "union business of that kind couldn't be performed on store time in the store". Mr. Ashley then left the store to attend the aforementioned meeting. After he was gone, Ms. Sawyer removed the sign from the bulletin board, turned it over, and reposted it on the bulletin board with the smoking instructions facing outward. When she left work that day shortly after 5:30 p.m., Ms. Sawyer removed the sign from the bulletin board and took it home with her.

18. Ms. Sawyer wrote the heading on the second petition in the restaurant next door to the store on Tuesday, May 22, 1990. She initially told the Board that she did this during one of her breaks that day. However, later in her testimony she contradicted that evidence by stating: "I didn't write it out on break. It was before work." Under further questioning about that matter, she indicated that she could not remember whether it was on her break or before work started.

19. The heading on the second petition reads:

We, the undersigned, wish to decertify from the Retail, Wholesale and Department Store

Union, A.F.L.-C.I.O.-CLC and its local 414. We do so voluntarily and with out duress.

Dated this 22nd day of May 1990.

Ms. Sawyer copied the name of the Union from a collective agreement booklet which she obtained from Ms. Whitfield. Ms. Sawyer signed the second petition in the lunchroom later that day during her lunch period. Another full-time employee (T2) and Ms. Whitfield (T3) also signed it at that time. Ms. Sawyer subsequently gave it to T4, another full-time employee, who was leaving the store on her afternoon break. When T4 returned the petition to Ms. Sawyer fifteen minutes later, it contained T4's signature. Neither Ms. Sawyer nor anyone else who testified before the Board saw T4 sign the second petition. Thus, there is no direct evidence before the Board concerning where she signed and who, if anyone, was present when she did so. There is also no evidence before us as to whether or not T4 showed the petition to anyone while it was in her possession.

20. In addition to those four signatures, the second petition also bears the signatures of seven part-time employees (TS-T11). Ms. Sawyer testified that TS signed in her presence in the aforementioned restaurant during their afternoon break. She also told the Board:

All the signatures were obtained on the same day.... T6 to T11 signed in the lunchroom before they started work and after I had punched out. This was between 5:20 and 5:30.

During cross-examination by Company counsel, Ms. Sawyer reiterated that she "punched out early" that day. She repeated that assertion during cross-examination by the Union, in which she stated that she was scheduled to work from 9:00 a.m. to 5:30 p.m. that day, but punched out at 5:20 p.m. and was not paid for that ten-minute period. However, her time card indicates that she did not punch out before 5:30 p.m. that day. Moreover, the time cards (produced by the Company at the Union's request) also indicate that two of the six employees (who, according to Ms. Sawyer, signed in the lunchroom between 5:20 and 5:30 p.m. "before they started work") had in fact punched in to commence work considerably earlier than 5:30 p.m. that day. Those cards further indicate that some of the others in that group of six did not work at all that day, a fact which Ms. Sawyer later acknowledged by changing her evidence to indicate that although they were not all scheduled to work that day, they were all there. She also stated: "They knew something was going on. Word gets around. It's a small store."

21. Ms. Sawyer subsequently mailed the two petitions to the Board, together with the application form (Form 17) which she obtained by telephoning the Board's office.

22. Section 57(3) of the Act provides as follows:

Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

23. The various principles, considerations, and concerns which the Board generally takes into account in determining whether or not an applicant has satisfied the onus of establishing the voluntariness of a termination petition are well established in the Board's jurisprudence. See, for example, Johnson Matthey Limited, [1987] OLRB Rep. Apr. 518; Domus Building Cleaning Co. Ltd., [1986] OLRB Rep. March 319; Dynasty Inn, [1986] OLRB Rep. March 326; Crothall Services Limited, [1984] OLRB Rep. Jan. 22; Irwin Toy Limited, [1983] OLRB Rep. Apr. 536; Westinghouse Canada Inc., [1982] OLRB Rep. July 1098; Charterways Transportation Limited, [1981] OLRB Rep. Aug. 1108; Upper Canada Glass, [1981] OLRB Rep. Aug. 1181; Ontario Hospital Association, [1980] OLRB Rep. Dec. 1759; and Northern Telecom Canada Limited, [1979] OLRB Rep. Apr. 330. As submitted by counsel for the intervener, the Board is less inclined to draw inferences adverse to the voluntariness of a termination petition than to a petition filed in respect of a certification application, because of the absence of a sudden "change of heart". See, for example, Ontario Hospital Association, supra, at pages 1768-9:

31. The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented in N.J. Spivak Limited, [1977] OLRB Rep. July 462:

32. In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 [now section 57] of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49, a section designed to give vent to employee desires, requires the passage of at least one year from the date of the union's certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certification of the same union, and having regard to the purpose of section 49, the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 of the Act.

See also Northern Telecom Canada Limited, [1979] OLRB Rep. April 330.

However , the issue before the Board is essentially the same as the issue which the Board must determine in a certification application in which a petition has been filed, i.e., whether the petition is a voluntary expression of the true wishes of the employees who signed it. As noted in Almag Aluminium Ltd., [1983] OLRB Rep. Nov. 1779, at paragraph 15, "the Board has consistently interpreted the word 'voluntary' in section 57(3) to mean that the petition is free of actual or perceived employer influence and that employees who sign a petition are not motivated by a perceived threat to their job security or by concern that failure to sign would be communicated to the employer or could result in reprisals."

24. Although the matter is not entirely free of doubt, we are prepared to assume for purposes of this decision that Ms. Sawyer's dissatisfaction with the Union and its stewards prompted her to prepare the aforementioned petitions and file this application with the Board, and that she did so without any support or encouragement from Mr. Ashley or any other member of management. However, having duly considered all of the oral and documentary evidence adduced before us, the submissions made on behalf of the parties, and the numerous prior decisions to which we were referred by counsel for the intervener, we have concluded, for the reasons set forth below, that the applicants have not met the onus of establishing on the balance of probabilities that the petitions represent a voluntary expression of the true wishes of their signatories.

25. Although she may not have intentionally attempted to mislead the Board, Ms. Sawyer was not a reliable witness. As indicated above, her testimony proved to be inaccurate concerning a number of significant matters. She initially testified that Mr. Ashley said "no" when she asked him if she could post something on the bulletin board. However, during cross-examination by the Company, she acknowledged that it was "possible" that Mr. Ashley said "okay". She was also unable to recall Mr. Ashley subsequently telling her to take down the posted petition. While it is understandable that a witness would be unable to recall minor details of an occurrence that took place almost two months earlier, Ms. Sawyer's memory lapses concerning those two significant and relatively unusual conversations indicate to us that she either has a rather poor memory or was attempting to avoid giving testimony which might weaken her case. Ms. Sawyer's inaccurate testimony regarding the signatures of T6 to T11 also demonstrates her unreliability as a witness. As indicated above, she told the Board that those six persons signed the (second) petition in the lunchroom between 5:20 and 5:30 p.m., before they started work and after she had punched out. However, the Company's time cards indicate that Ms. Sawyer did not punch out before 5:30 that day, that two of the six employees had in fact punched in to commence work considerably earlier than 5:30 that day, and that some of the others in that group of six did not work at all that day.

26. It appears from the totality of the evidence that Ms. Sawyer obtained at least some of the signatures on Company premises during working hours. While that fact alone is not necessarily fatal to the voluntariness of a petition (see, for example, Kilgoran Hotels Limited c.o.b. as Ye Olde Brunswick Tavern, [1975] OLRB Rep. March 240), in the context of a case such as this one in which the Company has, to the knowledge of its employees, a written non-solicitation policy which is generally enforced, it provides some support for inferring that employees would likely have thought that Ms. Sawyer was circulating the petition with the support or consent of management.

27. That such an inference may reasonably be drawn in the instant case is even more apparent from the circumstances surrounding the posting of the first petition on May 16. Although Ms. Sawyer initially testified that Mr. Ashley denied her permission to post it on the bulletin board, it is clear from the totality of the evidence that he in fact gave her permission to post something on the bulletin board that day, without knowing or asking what it was she wanted to post. While his ignorance of what was to be posted precludes a finding of actual employer support, it does not preclude the drawing of an inference that employees who saw the petition posted there would reasonably conclude that it was posted with the support or consent of management.

28. Moreover, the signatures on the posted petition were clearly not obtained in circumstances that would permit employees to feel reasonably assured that management would not become aware of which employee signed it in support of decertification of the Union and which employees did not. As indicated above, that petition was posted on the bulletin board in the lunchroom for approximately an hour on May 16. The bulletin board is visible to anyone walking by the lunchroom, including Mr. Ashley who regularly passes by that area. Indeed, the evidence establishes that Mr. Ashley did in fact notice the petition posted on the bulletin board, whereupon he entered the lunchroom and read the heading and the five signatures on it.

29. Another material deficiency in the applicant's case is the absence of cogent evidence concerning the circumstances in Which T4 signed the second petition. As indicated above, that petition was out of Ms. Sawyer's possession for approximately fifteen minutes when she gave it to T4, who was leaving the store on her afternoon break. Since neither Ms. Sawyer nor anyone else who testified before the Board saw T4 sign that document, there is no direct evidence concerning where she signed it and who, if anyone, was present when she did so, nor is there any evidence before us as to whether or not T4 showed the petition to anyone while it was in her possession. Thus, the situation is distinguishable from the cases cited by Company counsel in which, although there was no eye-witness testimony as to the actual inscribing of each signature, the evidence concerning the manner of obtaining the signatures was sufficient to enable the Board to conclude that no member of management was present when the signers affixed their signatures (see, for example, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW),[1967] OLRB Rep. March 976, at paragraphs 2 and 3, and Pyrotenax of Canada Ltd., 60 CLLC ¶16,170, at pp. 865-6).

30. Another fact which militates against finding the petitions to be voluntary in the instant case is the presence of Ms. Whitfield's signature on each of them. Although she remained a bargaining unit member at all material times, Ms. Whitfield had been a Manager Trainee since mid September of 1989 and, at the time the petitions were signed, had recently been promoted to the position of Merchandising Supervisor. Her participation in the aforementioned disciplinary meeting concerning the "swearing on the floor" incident confirms that she had a closer nexus with management than did other bargaining unit employees. As indicated above, there is conflicting evidence regarding whether or not Mr. Ashley told Ms. Short that Ms. Whitfield was there as a member of management. However, it is unnecessary to resolve that conflict as, regardless of what Mr. Ashley told Ms. Short, it is clear from the totality of the evidence that Ms. Whitfield was at that meeting because she had heard the employees swear on the floor and verbally admonished the employee for doing so, and because Mr. Ashley, who did not want to attend the meeting alone, saw her as an appropriate substitute for the pharmacist. It is reasonable to infer that Mr. Ashley found Ms. Whitfield to be suitable for that role because her position as a Manager Trainee who had recently been promoted to Merchandising Supervisor led him to conclude that her interests were more closely allied with those of management than with those of the Union. In the totality of the circumstances, it may reasonably be inferred that bargaining unit employees, including signers of the petition, would also have perceived Ms. Whitfield in that light, in view of her status as a Manager Trainee who had recently been promoted to the position of Merchandising Supervisor and who, unlike all of the other bargaining unit employees, was not required to punch a time card.

31. Although some of the aforementioned factors might not, if considered in isolation, lead inexorably to the rejection of a petition, their cumulative effect in the circumstances of the instant case leaves the Board unable to conclude that the signers of the petitions, other than Ms. Sawyer and Ms. Whitfield, have voluntarily signified in writing that they no longer wish to be represented by the Union.

32. For the foregoing reasons, this application is hereby dismissed.

DECISION OF BOARD MEMBER ROSS W. PIRRIE; March 7, 1991

1. I disagree with the majority decision. My interpretation of the evidence and assessment of the witnesses giving that evidence does not lead me to the conclusion that only Ms. Sawyer and Ms. Whitfield signed the petitions voluntarily. I heard nothing to cause me to infer that the other signators to the petitions did not also sign voluntarily. To assume to the contrary is to imply some form of management involvement in the petition activity or some form of implicit or explicit threat felt by employees in the bargaining unit to sign the petition. Again, I heard nothing to cause me to believe this to be the case.

2. In all the circumstances of this case, I would find the petition voluntary and order a vote to ascertain the wishes of the members of the bargaining unit with respect to continued representation by the union.