[1991] OLRB Rep. February 228
0153-90-R National Automobile, Aerospace and Agricultural Implement Workers' Union of Canada (CAW - Canada), Applicant v. Novocol Pharmaceutical of Canada Inc., Respondent v. Group of Employees, Objectors
BEFORE: Brain Herlich, Vice-Chair, and Board Members R. W. Pirrie and B. L. Armstrong.
APPEARANCES: B. Greenstein, C. Meneghini, C. Grant and I. Grant for the applicant; W. Thornton, M. Sheinberg and D. Wirtz for the respondent; K. J. Neville, W. J. Pearl and P. Clayton for the objectors.
DECISION OF THE BOARD; February 13, 1991
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The parties are in partial agreement that the bargaining units described as follows:
Bargaining Unit #1
All employees of the respondent in the City of Cambridge, save and except maintenance and quality control supervisors, persons above the rank of maintenance and quality control supervisor, office and sales staff, and persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period
and;
Bargaining Unit #2
All employees of the respondent in the City of Cambridge regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period, save and except maintenance and quality control supervisors, persons above the rank of maintenance and quality control supervisor, office and sales staff.
constitute units of employees of the respondent appropriate for collective bargaining.
The respondent (also referred to as the "company" or the "employer") and the objectors advocate the above descriptions while the applicant (also referred to as the "union") asserts that the phrase "maintenance and quality control supervisors" ought to be replaced by the word "supervisors". Related to this dispute regarding the bargaining unit description is the applicant's assertion that two individuals, Judy Bartwick and Nady Bidiyananth, ought to be excluded from the list of employees for purposes of the count. The union argues that these individuals exercise managerial functions.
With respect to bargaining unit #2 and regardless of the resolution of the dispute regarding the bargaining unit description, the Board is satisfied that not more than one employee was in the bargaining unit on the date of the application, consequently the application, insofar as it pertains to bargaining unit #2 is hereby dismissed.
As is indicated in a decision of the Board (somewhat differently constituted) dated May 28, 1990, there was a further dispute between the parties regarding the inclusion of six other individuals on the list of employees. In that decision, the Board consequently appointed a Labour
Relations Officer to inquire into the duties and responsibilities of the eight individuals referred to
and to report to the Board.
During the course of that inquiry the parties entered into a memorandum whereby they agreed that the five persons classified as lab persons are properly included in the unit and the one individual classified as plant clerk is properly excluded. No agreement was reached with respect to the two individuals alleged to be managerial and the Officer's inquiry followed its normal course with respect to those individuals.
In the interim and in accordance with the earlier Board decision, the matter was listed for hearing to inquire into the voluntariness of the statements of desire (petitions) filed in opposition to the application.
Hearings were held on July 10, 11, 17, 18 and 19; October 25; and November 1 and 2, 1990 during which time the Board heard the evidence of 14 witnesses.
At the commencement of the hearings the parties agreed that the Board should rule on the issue of whether Ms. Bartwick and Ms. Bidiyananth exercise managerial functions on the basis of the transcript of the officer's examination and that no further viva voce evidence would be called in relation to that issue. However, in view of the outstanding issue regarding the voluntariness of the petitions, it was also agreed that the parties would be free to call evidence and cross-examine on issues relating to employees' perceptions of the status of those two individuals. Notwithstanding that initial agreement, at the conclusion of the hearings and just prior to argument the parties requested that the Board not rule on the issue of the section 1(3)(b) challenges at this time. They also agreed that for the purposes of our determination regarding the voluntariness of the petitions we should accept that the two individuals, whether or not excluded by section 1(3)(b) of the Act, are perceived by employees to be in managerial positions. Consequently, references to "management" for the purposes of the present decision should be taken as including the two individuals whose precise status for other purposes remains in dispute.
Myron Sheinberg is the Vice-president, Human Resources, of Henry Shine Inc. which owns an interest of the respondent company. Mr. Sheinberg has responsibility for the respondent's employee relations. His office is in Port Washington, New York, but he visits the Cambridge plant some five to seven time per year. Apart from Nady Bidiyananth, Mr. Sheinberg was the only witness to testify on behalf of the respondent.
On April 17, 1990 Mr. Sheinberg received a telephone call in his New York office from Frank Milia, president of the employer, in Cambridge. Mr. Milia recounted that he had been advised by an employee (not identified in evidence) that an organizing campaign was underway. Mr. Sheinberg's response was to simply "wait and see". It was not necessary to wait very long. The following day the union delivered the following letter by fax to Karl Lashley, the company's plant manager:
I have been informed by some of your employees that members of management have been questioning workers about our organizing campaign at your establishment.
Apparently, workers have been asked directly if they have signed union cards; also, management told the employees that in the event our organizing campaign is successful the plant will close.
As you may, or may not be aware, these tactics are in violation of the Ontario Labour Relations Act, section 64, 66 and 70. Employees have the right to make their decision as to whether or not they want to join a union, free from management interference.
I strongly urge you to advise your management to cease and desist from any further anti-union tactics.
I am monitoring the situation at your plant on a daily basis, and should your unlawful conduct continue, I will have no other choice but to file unfair labour practice charges with the Ontario Labour Relations Board.
Upon being apprised of the contents of this letter, Mr. Sheinberg instructed Mr. Milia to investigate the allegations it contained and determined to visit the plant the following day. In a subsequent phone conversation that same day Mr. Milia advised Mr. Sheinberg that he had met with all management employees and they had denied all allegations regarding questioning employees about union membership.
The following day, Thursday, April 19, 1990, Mr. Sheinberg attended at the plant. At approximately 3:30 p.m. he conducted a meeting in the production area of the plant where he addressed all the employees working the day shift. A similar meeting was held at approximately 5 p.m. for all employees working on the evening shift.
At the first meeting Mr. Sheinberg read out the text of the letter received from the union. He denied any allegations about closure (in fact the company had recently announced plans to expand the Cambridge Operations). He advised employees that Mr. Milia had discussed the allegations with management and had been assured that no employees had been questioned about union membership. He acknowledged that any such questioning would be illegal and asserted that it would also be contrary to company policy. He also told employees that although he was unfamiliar with Canadian labour laws, he knew that, at least in the U.S., there were ways to "ask for [signed union] cards back", suggesting that if any employees had been influenced by what he viewed as the unfounded union allegations they might wish to avail themselves of that process. We note that while there were variations in the accounts of the six witnesses who testified as to the contents of Mr. Sheinberg's address, all but one specifically recounted Mr. Sheinberg having used a phrase like "retrieving" or "getting cards back". We note the use of this phrase because on the one hand it is unusual in the sense that (even though its intent is clear) it is an inaccurate description of the manner in which employees may signify a change of heart regarding union membership; on the other hand at least two of the witnesses called by the petitioners used this very phrase to describe the object of the activities they undertook subsequent to Mr. Sheinberg's address.
Finally, at the first meeting, Mr. Sheinberg extended an invitation to employees. While there was conflicting evidence regarding the precise nature of the invitation, we are satisfied it was intended to solicit any information from employees which may have conflicted with Mr. Sheinberg's denial that any employees had been questioned by management regarding union membership. We are also satisfied, however, that while it may not have been Mr. Sheinberg's intention, his invitation was interpreted, at least by some employees, as an invitation to discuss ways of "getting cards back" with management.
Shortly after the meeting two employees, Laurie McCue and Germaine Deschamps, approached Mr. Sheinberg and advised that they had information regarding an employee who had been questioned by management. Kim Bounket, the employee in question, was summoned and she recounted how Nady Bidiyananth had questioned her regarding whether she had signed a union card and how Ms. Bounket had acknowledged doing so.
Shortly after receiving this information, Mr. Sheinberg met with Ms. Bidiyananth who vehemently denied any such conversation had taken place. Mr. Sheinberg advised her that it was inappropriate for her to question employees about union membership.
Both Ms. Bounket and Ms. Bidiyananth testified before the Board. Ms. Bounket's version of her conversation with Ms. Bidiyananth was entirely consistent with Mr. Sheinberg's evidence regarding her account of it to him. She also testified that a fellow employee, Diane Reid, had summoned her to meet with Ms. Bidiyananth and that Ms. Reid and another employee were present when the questioning ,took place. When Ms. Reid testified on behalf of the objectors she did not contradict Ms. Bounket's version. On the other hand, while Ms. Bidiyananth in her evidence before the Board initially denied any conversations with any employees regarding the union, she subsequently acknowledged that the subject may have come up in a conversation with another employee but continued to deny any such conversation had taken place with Ms. Bounket.
For a number of reasons, including Ms. Bidiyananth's evasive and unresponsive manner during her testimony as well as the lack of any challenge to Ms. Bounket's credibility, we prefer the evidence of Ms. Bounket in relation to these events.
At approximately 5 p.m. on April 19th and subsequent to the events just recounted, Mr. Sheinberg held another meeting and addressed all employees working on the evening shift. The content of this address was similar to the first although Mr. Sheinberg testified that he was a little rattled by the information recently provided by Ms. Bounket and consequently his tone was not as indignant when he once again denied the union's allegations in front of the employees.
Mr. Sheinberg returned to New York that evening, but on his way home began to feel uneasy about the meetings held that day. He was concerned about his credibility in having denied any employees had been questioned by management in face of the information now provided by Ms. Bounket. He was concerned about his denial, to use his words, "knowing now that this person [Ms. Bounket] had been questioned". He was also concerned that the questioning which took place may not have been limited to Ms. Bounket. Consequently, Mr. Sheinberg determined to hold a further meeting of employees on Monday, April 23, the next working day at the plant. Even before Mr. Sheinberg's next meeting with employees, some initial steps towards "getting cards back" were begun.
Sometime early in the afternoon on Saturday, April 21st Keith Neville and William Pearl visited Art McNeil at the latter's home (all three are employees of the company). Apparently the three had had earlier discussions although there was no specific plan to meet that day. Mr. Neville and Mr. Pearl decided to make the visit because both felt Mr. McNeil was knowledgeable about how to "get their cards back". In fact when they arrived Mr. McNeil was in the process of producing a document relating to this very point. The document ultimately produced read as follows:
To Whom It May Concern
At my place of employment, Novocol Pharmaceuticals (25 Wolsley Court, Cambridge), we have a movement towards a union, for which I signed a membership card. Since then I have found that the tactics used are not above board and I wish to withdraw my support. When voicing my complaints I was told that I had to contact this office.
The Board was not advised which "tactics" it was that were felt not to be "above board"; nor did we hear any evidence to suggest that any of the union's conduct during the ongoing campaign was improper.
Copies of the above letter were prepared for each of the three employees and each signed and mailed their own letters. Although the letters were addressed to Ministry (or Department) of Labour, Queen's Park, they all managed to find their way to the Board. In this respect we note that while the text of the letter' refers to having been "told that I had to contact this office", Mr. McNeil testified that the address to which the letters were mailed was simply as a result of his presumption.
There were a number of developments on Monday, April 23, the next working day. Early in the day Keith Neville showed Phil Clayton, a fellow employee who was also the chief spokesperson for the objectors at the hearing, a copy of the letter produced at Mr. McNeil's house. We were not advised as to how or where this copy was made (it will be recalled that the earlier evidence was that all three copies of the letter had been mailed on the previous Saturday). The two of them revised the text of that document and prepared a draft which read as follows:
To Whom It May Concern
At my place of employment, Novocol Pharmaceutical, (25 Wolsley Court, Cambridge) we have had a movement towards a union, for which I signed a membership card. Since then, I have reconsidered the facts and now wish to withdraw my support. I no longer wish to be represented by CAW. local () [sic].
I was told I had to contact this office.
In addition, Mr. Clayton said he would find out the proper address to which this document should be sent.
Mr. Neville then took the draft of the new document to the office area of the plant and asked Catherine Rutt, an office employee who works in accounts receivable, if she would type a copy of the letter on her word processor. Ms. Rutt did so and provided Mr. Neville with two copies of the finished document.
In the interim, Mr. Sheinberg had arrived from New York for his second visit to the plant within as many working days. He arrived at approximately 10:00 a.m. and shortly afterwards spent approximately an hour on the phone with counsel reviewing events to date. Subsequent to that discussion Mr. Sheinberg instructed Mr. Milia to meet with the office and clerical staff to instruct them not to do anything for anyone involved with the union. Although the petition process had been part of his discussion with counsel, Mr. Sheinberg testified that his concern in so instructing Mr. Milia was to insure that no confidential company information (e.g. employee lists) was released in aid of the organizing campaign. He also instructed Mr. Milia to arrange a meeting of all management staff for later that day.
Pursuant to his instructions and approximately 45 minutes to an hour after Ms. Rutt had completed the letter for Mr. Neville, Frank Milia advised Ms. Rutt and another clerical employee that they should not do any tasks requested of them by employees. Ms. Rutt was a relatively new employee at the time and had been told by co-workers that it was a busy day, a lot was going on and the "big man" (Mr. Sheinberg) was there. In those circumstances, Ms. Rutt prepared and gave Mr. Milia a note indicating she had typed a letter for Mr. Neville. Upon inquiry Ms. Rutt told Mr. Milia that the letter had something to do with the union. Mr. Sheinberg, upon being advised, instructed that the document in question should be retrieved.
Consequently, Mr. Karl Lashley, the plant manager directed Mr. Neville to return the document. Mr. Neville retrieved the two copies from a locked cabinet (to which only he and Mr. Pearl, who works in the same job on the evening shift, had keys) in which they were being kept, proceeded to make at least five further copies on the company photocopier, and returned two copies of the letter to either Mr. Milia or Mr. Lashley. The document was shown to Mr. Sheinberg and although he believes it was destroyed we have no direct evidence in that regard (neither Mr. Milia nor Mr. Lashley testified in these proceedings).
At approximately 3 p.m. Mr. Sheinberg met with management employees and instructed them to politely decline to answer any questions from or to participate in any discussions with employees regarding the union campaign. About an hour later Mr. Sheinberg held the first of a pair of meetings (one per shift) with all employees. Again, there was some divergence in the evidence regarding the content of his address. It is clear that Mr. Sheinberg offered an apology to employees regarding previous questioning about union membership. Mr. Sheinberg's evidence was that he presented the conflicting versions he had received regarding the events and said that if the events had happened he apologized. The evidence of some of the union witnesses suggested that Mr. Sheinberg's apology was not conditional. The resolution of this conflict is not material for our purposes.
After the meeting, Mr. Neville began to solicit signatures on the newly drafted letter. He told a number of fellow employees that he had a way for them to "retrieve their cards". He met with Mr. Pearl at approximately 4:30 p.m. in their shared work area, had him sign a copy and gave him one of the blank copies of the letter. At that time he also provided Mr. Pearl with the correct address of the Board to which signed letters were to be mailed. Although the evidence was not entirely clear on the point, we can only presume that Mr. Clayton got the address by making a telephone call(s) from the workplace that day and relayed that information to Mr. Neville. Mr. Neville had previously had another employee (P3) sign a copy of the letter at the employee's work station. Several hours after completing his shift, he returned to the workplace and had Mr. McNeil sign a copy of the letter in the maintenance shop between 8 p.m. and 9 p.m. Despite the late hour, Mr. Neville testified that he brought the four signed copies he had collected of the letter (including his own) to the post office and mailed them to the Board that day.
On the evening shift Mr. Pearl, who had been advised by Mr. Neville that a copy of the letter was in their cabinet, used the company photocopy machine to make four additional copies of the letter. He gave three of those copies to Suzanne Powell, a fellow employee, and returned two copies (including the "original") to the cabinet. Ms. Powell met with two other employees (P6 and P22) after work and secured P6's signature at that time (although we note P6's signature is dated April 25,1990). Ms. Powell mailed the copies signed by her and by P6 to the Board in accordance with the address Mr. Pearl had provided her. The Board also received a copy of the letter signed by P22 (who did not testify in these proceedings).
On Wednesday, April 25, notice of the present application was posted in the plant. Mr. Clayton testified that the posting took place at approximately 1 p.m., although the advice of posting card filed by Mr. Milia on behalf of the company indicates posting was completed at 3 p.m. Mr. Clayton read the documents posted which included some information for employees wishing to oppose the application.
After discussing the matter with another employee he went to the maintenance shop and drafted the following preamble to a petition:
We the employees of Novocol Pharmaceutical of Canada Inc. are opposed to the CAW-Canada being certified. We do not want this union to represent us or have anything to do with us. April 25th, 1990.
Mr. Clayton made a photocopy of the petition on the office photocopier and proceeded to solicit signatures on the document. By 5 p.m. that day Mr. Clayton had collected 10 signatures (including his own) on the first document (known as petition 1). Without reviewing the details of each signature suffice it to say that all these signatures were collected in the plant during working hours and, many, at the employees' work stations. Although Mr. Clayton conceded that management personnel would regularly be in and out of the areas where signatures were collected, he testified that he did not recall seeing any management personnel present when the signatures were collected. At approximately 5 p.m. Mr. Clayton gave the photocopy of the petition preamble to Mr. Pearl who then solicited signatures on that document (subsequently labelled as "petition 2") from employees working on the evening shift. Between approximately 8 p.m. that day and 3 a.m. the following morning Mr. Pearl secured the signature of 8 employees. Again these signatures were obtained in the plant during working hours and, in many cases, at the employee's work station.
The following day Mr. Pearl returned the petition to Mr. Clayton who then secured the signature of one other employee in the plant. Also on that day Mr. Clayton secured the signatures of 4 additional employees to petition #1. These signatures were obtained from the employees as a group in the lab area of the plant between 3 and 4 p.m.
Mr. Clayton took the 2 petitions home with him and subsequently prepared a typed covering letter and list of employee signatures and filed those documents and the petitions with the Board.
Finally, in the chronology of events significant for our purposes, a third meeting of all employees was held on April 30 (for the afternoon shift) and on May 1st (for the day shift). While it is clear that these last meetings took place after all signatures had been obtained on all the relevant petitions (indeed, even after the petitions had been filed with the Board) we note that they took place on or before the terminal date. Further, while we do not find that anything occurred at these meetings which is dispositive of the issue currently before us, some reference to them is useful to complete the picture of the general atmosphere in the plant during the relevant period.
The last pair of meetings were apparently called to dispel rumours circulating to the effect that certain employees had or would receive significant cash bonuses. Mr. Sheinberg took the opportunity, however, to address certain comments regarding the union to the assembled employees. In particular he warned of the possibility of employees having to pay retroactive union dues in the event that the process of collective bargaining was prolonged. He also referred to the union constitution and warned employees of the possibility of internal union charges or even trials for persons in violation of the constitution.
The Board's general approach to petitions has been set out in many earlier cases including Custom Foam Specialties Limited, [1986] OLRB Rep. Dec. 1680 at paragraphs 8-11:
The object in certification proceedings is to determine whether a majority of the employees found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their employment dealings with their employer. The Labour Relations Act provides that the certification of trade unions in this Province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of an application. The Board does not inquire into opinions about the virtues of union membership except as evidenced by that documentary membership and any timely petitions filed with respect to an application. In Ontario, as in most Canadian jurisdictions, the representation vote exists as a residual mechanism for ascertaining the wishes of bargaining nit employees in cases where either the applicant union does not have the support of more than fifty-five percent of the bargaining unit employees which is necessary for outright certification under 7(2) of the Act (but does have the support of not less than forty-five percent of them) and where the circumstances are such that the Board sees fit to require such a vote to be held notwithstanding that there is documentary evidence showing membership support in excess of fifty-five percent. The Board's discretion in that respect must be exercised in the manner that is consistent with the Legislative primacy of the membership evidence as the means by which employee wishes with respect to certification are determined.
The realities of labour relations are such that the employees can and do change their views as to the desirability of trade union representation. In recognition of this, the Board has developed a procedure which recognizes the validity of union membership cards but retains flexibility to seek the confirmatory evidence of a representation vote where employees file a timely petition which indicates a change of heart.
Unlike union membership evidence, petitions are not directly or precisely regulated by the Act. There is no statutory definition equivalent to section 1(1)(1), nor is there any requirement that the Act of signing be confirmed either by monetary payment or otherwise. There is also no statutory declaration analogous to Form 9 (which attests to the regularity and sufficiency of membership of evidence). However, the existence of such statements is contemplated by section 103(2)(j) and 111(1) of the Act and Rule 73 of the Board's Rules of Procedure. The Board has a long established practice of accepting such petitions and exercising its discretion to order a representation vote where the petitions are voluntary and they contain a sufficient number of signatures of persons who had previously signed union membership cards to create a doubt as to the actual level of support enjoyed by the applicant trade union. The Board must be satisfied that persons indicating an apparent change of heart did so voluntarily and without being motivated by a perceived threat to their job security, a concern that the employer is involved in the petitions, or that a failure to sign could result in reprisals. It is only those bargaining unit employees who first signed union membership cards and subsequently signed petitions whose signatures are relevant to the Board's considerations. This is because employees for whom no membership evidence is filed are treated as being opposed to the application. Consequently, the signature of a nonunion member on a petition can add nothing to the assessment of the support enjoyed by the union applying for certification.
The Board's treatment of petitions as described aforesaid has been explained in previous Board decisions (see for example, Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 at paragraphs 15, 16 and 17). The onus of establishing that a petition is voluntary is on the employees objecting to certification. To do so, they must call witnesses to give evidence, based on personal knowledge and observation, relating to the circumstances of the origination and preparation of the petition, and the manner in which each signature was obtained. The cases are legion in which a failure to appear and give satisfactory firsthand evidence regarding the origination and circulation of a petition has resulted in its rejection. Each and every signature on a petition must be identified and the circumstances under which it was obtained must be recounted by a person having personal knowledge thereof. Where such evidence is not presented, the signature may, and likely will, be discounted. In addition, the circulation of petitions must be free from the actual or perceived influence of management. Consequently, the Board will discount the signature of any employee who is, or is perceived to be managerial. Similarly, where managerial personnel, or persons who are perceived as having a greater proximity to management than other employees, are involved in originating or circulating a petition, it is difficult to escape the conclusion that the employees would reasonably have perceived the petition to be supported by the employer and its reliability as a gauge of employee desires will be destroyed (see, Rule 73(5); Radio Shack, [1978] OLRB Rep. Nov. 1043; Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387; Lo Food Division of Lumsden Brothers Limited, [1983] OLRB Rep. May 676; Markham Hydro Electric Commission, [1984] OLRB Rep. Oct. 1481).
Other more specific concerns may arise where a petition is prepared and circulated in the workplace during working hours, although this fact alone is not necessarily fatal to the petition as long as the Board is otherwise satisfied that the petition filed is a voluntary expression of employee wishes (see Packer's Dye Works and Cleaners Limited. [1974] OLRB Rep. Dec. 859 and the cases cited therein). On the other hand, the Board has been known to observe that employees circulating petitions at work assume certain risks in respect of the manner in which such documents will be received by the Board as indicated in Ontario Hospital Association, [1980] OLRB Dec. 1759 at paragraph 34:
In the present case, many of the problems which arise could have been avoided had the sponsors of the petition found a way to poll employees away from the premises of the employer. As the Board has said, there is no "rule" preventing the circulation of a petition on company premises. The manner of circulation need not be perfect, but if the sponsors elect to proceed with the petition at their place of work, it becomes incumbent upon them to be sensitive to the impression which their activities can create in the minds of other employees. It is not unusual for petitioners appearing before the Board to point to the fact that cards are often signed on company premises. There is, however, a practical difference between the two situations. Persons engaging in pro-union activity on company premises are rarely perceived by other employees as acting with the complicity and authority of management. The same cannot be said for anti-union activity, and the manner of circulation therefore becomes more significant.
The Board has a number of concerns regarding the events just recounted.
First we have the questioning of a bargaining unit employee by an individual acknowledged to be perceived as managerial. This questioning regarding trade union membership occurs within the earshot of two other employees. Further, although there is no direct evidence on the point, apart from Ms. Bidiyananth's denial, the Board, perhaps not unlike Mr. Sheinberg, is not necessarily satisfied that this incident is an isolated one.
Next, we have captive audience meetings at which the employer advises employees of the possibility of "getting cards back" and offers an invitation apparently understood by some employees and potentially reasonably perceived by others to be an invitation to discuss the process with management. It is subsequent to that, that activities aimed at soliciting signatures in opposition to the application begin in earnest. While some cases have simply inferred a causative link between similar management intervention and the subsequent petition(s) filed (see for example Foodex Inc., [1980] OLRB Rep. Apr. 414), in our case there is more concrete evidence of the link in that the precise and perhaps somewhat unusual language used by the employer to describe the process is integrated into the descriptions offered by the petitioners for their own activities.
Further, a number of aspects related to the actual preparation and circulation of the petitions trouble us. These emerge principally from the fact that much of the circulation and supporting activities were carried on at work and during working hours with little apparent concern. One of the petitions is prepared on a company word processor by an office employee. Mr. Clayton apparently makes long distance phone calls from work to ascertain the Board's address. The company's photocopying equipment is used at least four separate times in support of the petitioners' activities. But perhaps most significantly, signatures are solicited from employees at their work stations (in one case 10 in a period of two or four hours). While, as we have already indicated, the petitioners' evidence generally was that they did not see any management personnel present during any individual signing, it was acknowledged that management was regularly in and out of many the areas where signatures were obtained, particularly on the day shift.
Finally, we cannot ignore the fact that one of the petitions, although without signatures, was, however briefly, in the possession of management. Nor can we ignore the fact that no evidence was heard from the management personnel (Mr. Lashley and Mr. Milia) who were primarily responsible for retrieving this document and who might have enlightened us as to the uses, if any, to which this document was put as well as its ultimate fate. In this respect we should note as well that neither are we satisfied that all of the various copies made of this document (even apart from those which were in management's possession) have been properly accounted for.
In the circumstances we needn't decide which, if any, of the above concerns, standing alone, would cause us to doubt the voluntariness of the petitions filed.
As indicated above, the mere fact that a petition is prepared and circulated on the employer's premises will not be fatal if the Board is satisfied, on a balance of probabilities, that employees would not reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of an employee's decision to sign (or not to sign) the petition (see Radio Shack [1978] OLRB Rep. Nov. 1043); Morgan Adhesives of Canada Ltd., [1975] OLRB Rep. Nov. 813; Lo Food Division of Lumsden Brothers Limited, [1983] OLRB Rep. May 676). The Board is not able to draw such a conclusion in the present case.
The preparation and circulation of the petitions in the present case followed closely on the heels of captive audience meetings and questioning of at least one employee regarding union membership by an individual perceived as managerial. In that context employees are asked to sign petitions at their work stations and in open view in areas regularly frequented by management. In this general atmosphere and given the various concerns articulated we are simply unable to conclude, borrowing the words of the Ontario Hospital Association case supra (at paragraph 33) that the circumstances were such as would "... permit the employees to feel with some comfort that management will not be made aware of which employees in the unit supported the efforts of the petitioners, and which of the employees did not".
Our finding in this regard is not meant to suggest any deliberate inappropriate conduct on the part of the petitioners. We should note that the union and the objectors each filed allegations of alleged improper conduct by the other. Evidence was heard in respect of the union's allegations. The Board declined to hear evidence regarding the objectors' allegations since they were not filed in a timely fashion and, perhaps more importantly, because they related to the union's conduct in securing signatures reaffirming employee support and retracting previous signatures on petitions. The Board had determined that these subsequent revocations were not numerically relevant. In any event, in both cases we are satisfied that the conduct complained of consists essentially of the kind of puffery, propaganda and persuasion normally attendant to any organizing campaign. For the same reasons that the Board decided several years ago to eliminate the "silent period" leading up to a representation vote, we are reluctant, except in the most unusual and extreme circumstances, to enter into and regulate the debate about the merits of union organizing which takes place between employees. All this by way of saying that while we are unable to find any specific deliberate inappropriate or unlawful conduct on the part of the objectors (or the union), we must, however, conclude that, in view of the concerns we have articulated, the objectors have failed to meet the onus of establishing that the petitions are voluntary.
The Board is satisfied on the basis of all the evidence before it and notwithstanding the ultimate resolution of the dispute concerning the composition of the bargaining unit that more than fifty-five per cent of the employees of the respondent in bargaining unit #1, at the time the application was made, were members of the applicant on May 1,1990, the terminal date fixed for this application and the date which the Board determines, under Section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
In the circumstances the Board might have exercised its discretion pursuant to section
6(2) of the Act to grant an interim certificate. However, the parties jointly requested that we limit this decision to a determination regarding the voluntariness of the petitions.
- The Registrar is therefore directed to list this matter for hearing regarding the following outstanding issues:
(a) the status of J. Bartwick and N. Bidiyananth; and
(b) the composition of the bargaining unit.
- We hope that the parties' estimation that the balance of the outstanding issues could be resolved once this decision was issued was correct and, therefore, look forward to being advised that those issues have been resolved and that no further hearing is required.